FIRST SECTION
CASE OF
GRIGORYEV v. RUSSIA
(Application no.
22663/06)
JUDGMENT
STRASBOURG
23 October 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 Grigoryev v. Russia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Nina Vajić, President,
Anatoly Kovler,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos,
Erik Møse, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 2 October 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
22663/06) against the Russian Federation lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by a Russian national, Mr Vyacheslav Ivanovich Grigoryev
(“the applicant”), on 12 May 2006.
The applicant was represented by Ms Ye.
Mishina. 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 ill-treated by the police on his arrest and that the domestic authorities
had failed to investigate the matter. He further complained of the excessive
length of the criminal proceedings against him.
On 2 December 2009 the above complaints were
communicated to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (former
Article 29 § 3 of the Convention).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1939 and lives in Moscow.
A. Criminal proceedings against the applicant
In 1996-1999 the applicant and his associates,
acting on behalf of an organisation named “The National Land Use Association” (региональная общественная Ассоциация “Народное землепользование”)
they had set up earlier, bought plots of land around Moscow destined
exclusively for agricultural use and then, having reconfigured these plots into
smaller pieces, transferred them to the organisation’s members, giving them reason
to believe that the land could be used for building purposes.
On 10 January 2000 criminal proceedings were
instituted against the applicant on suspicion of fraud (Article 159 of the
Criminal Code) and forgery (Article 327 of the Criminal Code).
On 7 December 2000 the applicant was charged
with forgery and he signed an undertaking not to leave his place of residence.
In 2001 and 2002 the applicant was on two
occasions held in pre-trial detention. He spent six months in custody
altogether.
On 25 June 2002 the pre-trial investigation was
completed and on 12 July 2002 the case was allocated to the Babushkinskiy
District Court (Moscow) for judicial examination. The case
concerned the applicant and seven co-defendants.
The first hearing was scheduled for 11 August
2003.
According to the applicant, in the period from
August 2003 to July 2005 the case was assigned to six different judges of the
Babushkinskiy District Court, which meant the trial had to start anew on each
replacement.
Hearings were adjourned on 2, 7 and 31 October,
6, 12 and 28 November, and 9 and 17 December 2003, and 21 January and 5
and 24 May 2004 because three of the co-defendants, all elderly persons,
were unwell.
On 5 May 2004 the trial court
suspended the criminal proceedings in respect of the three co-defendants as they were seriously ill. The court acknowledged the protracted
character of the proceedings.
On 21 February 2006 the court
ordered a forensic psychiatric examination of the applicant and suspended the
examination of the case. On an unspecified date in December 2006 (date
impossible to read in the relevant document) the case file was returned from
the forensic psychiatric examination without having been examined. The
accompanying letter stated that the examination had not been performed because
the applicant had twice failed to appear (on 14 November and 5 December
2006). The proceedings were resumed on 28 December 2006. It appears that the
examination in question has never been conducted.
On 15, 19 and 27 June, 2, 10,
11, 13, 20 and 25 July, 6, 7, 13, 14, 17, 21 and 27 August, 10, 20, 24 and 28
September, and 4, 11 and 15 October 2007, hearings were adjourned because the
applicant and two co-defendants failed to appear.
On 24, 26, 29 and 31 October,
and 2 and 6 November 2007, the court ordered the applicant to attend the
pleadings and the pronouncement of the judgment, but to no avail.
In the meantime, on 16 October 2007 the
proceedings against the applicant were severed from those concerning the
remaining co-defendants.
According to the Government, during the
proceedings the trial court heard over 600 victims and 44 witnesses. To speed
up the proceedings the court read out statements by those victims and witnesses
who had failed to appear and dismissed the prosecutor’s requests to obtain the
attendance of a number of witnesses and victims.
According to the applicant, however, only forty
victims and no witnesses were questioned in open court.
On 26 November 2007 the Babushkinskiy District
Court examined the applicant’s case and disagreed with the prosecution’s
characterisation of the applicant’s acts as fraud and forgery. The trial court
noted that some of the essential characteristics of fraud and forgery were
lacking. The applicant had not derived (and had not even intended to derive)
any personal profit from the scheme and had not forged any official documents,
but rather had given the organisation’s members reason to believe that the
reconfiguration of the plots and building permits issued in the name of the organisation
were valid acts. So, in the view of the court, the applicant was guilty of the offence
of taking the law into his own hands rather than fraud and forgery.
Accordingly, the court acquitted the applicant under Article 327 §§ 1 and 2 and
Article 159 § 3 of the Criminal Code. The court, however, convicted the
applicant under Article 330 § 1 of the Criminal Code of taking the law into
his own hands, and sentenced him to compulsory work for a term of 200 hours.
The applicant was exempted from serving his sentence.
The applicant appealed. He complained, in
particular, that the trial court, having retired to the decision room for the
delivery of the judgment, had decided to convict him of a different crime from
the one he had been charged with.
On 13 February 2008 the Moscow City Court
replaced the sentence of compulsory work with a fine in the amount of 20,000
Russian roubles, and upheld the rest of the judgment on appeal. As regards the
applicant’s conviction for taking the law into his own hands, the City Court
held that it had been within the trial court’s power to change the judicial
qualification of the applicant’s actions. In reaching that conclusion the City
Court relied on Article 252 of the Code of Criminal Procedure.
B. Alleged ill-treatment by the police and investigation
into the ill-treatment complaints
During the night of 6 to 7 February 2002 the
applicant was arrested. According to the applicant, the police squad broke into
his flat, handcuffed him, kicked him, then dragged him outside, forced him into
the police car and took to the Savelovskiy District police station (ОВД “Савеловский”
САО г. Москвы).
An ambulance was called for
the applicant at the police station and it was discovered that he had an injury
in the region of his ribs.
At 3.30
p.m. on 7 February 2002 the police took the applicant to the Traumatology
Centre. The applicant underwent a thoracic cage radiograph and was diagnosed
with fractures to ribs 8 and 9 on his right side (radiograph no. 1339 of 7
February 2002).
The applicant was then taken to Moscow remand prison IZ-50/1.
On the same day the applicant
submitted a complaint about alleged beatings to the head of the remand prison.
On 8 February 2002 the applicant was questioned about
the circumstances of the alleged beatings. The applicant’s daughter was also
questioned and stated that she had seen the police officers pushing the
applicant in the back, the applicant falling down, then the police officers
handcuffing the applicant and kicking him on his back and the sides of his
body. The officers on duty, B. and St., submitted that during the night of 6 to
7 February 2002 the applicant was taken to the police station, and that, following
his requests, the ambulance was twice called for him. They further submitted
that the ambulance doctor, having examined the applicant, said that he had a
serious contusion in the area of his ribs. Police officer Sh., who was
responsible for the applicant’s arrest, submitted that the ambulance doctor
said that the applicant might have fractured ribs and gave him an injection.
Officer T. of the special police forces (“the OMON”) submitted that the arrest
had been calm and that the applicant had not resisted.
On an unspecified date the investigator obtained
a certificate from the Traumatology Centre to the effect that in the period
between December 2001 and 7 February 2002 the applicant had not presented
any injuries.
On 24 April 2002 the Prosecutor’s Office of the
Moscow Savelovskiy District refused to institute criminal proceedings against
the police officers, having found no indication of a criminal offence.
However, on 15 May 2002 the
Moscow City Prosecutor’s Office annulled that decision and instituted criminal
proceedings no. 229435 under Article 286 § 3 of the
Criminal Code (abuse of position involving the use of violence).
On 4 July 2002 the investigator questioned
the applicant’s wife M., who had been present at the applicant’s arrest. She
submitted that on 6 February 2002 her husband, herself and their daughter were
at home when, some time after 11 p.m., somebody started ringing the doorbell. She
did not open the door since it was late. She heard men’s voices outside. The
men did not say who they were and they did not explain the reason for their
visit, but persistently rang the bell and knocked on the door. M. called the
police. Some thirty minutes later M. heard the sound of breaking glass in the
kitchen. Several men entered the flat through the broken window. The men wore
grey camouflage, flak jackets, helmets and high laced boots. They were armed.
One of the men opened the front door and several other men entered the flat.
The applicant, M., and their daughter were ordered to lie on the floor with
their hands behind their backs. Without waiting for the applicant to obey the
order to lie down, one of the men in camouflage pushed the applicant to the
floor. She saw two men in camouflage and wearing boots start kicking the
applicant on the middle part of his body. The applicant was in his underwear.
He did not resist. M. saw the applicant later on at the police station, lying
down. She heard him making health complaints. An ambulance was called for him.
Later the applicant told M. that he had been taken to the Traumatology Centre
and diagnosed with two broken ribs. He also told M. that the injuries had been
caused by the police officers.
On 8 July 2002 the investigator questioned
the applicant’s daughter, who submitted as follows. On 6 February 2002 she and
her parents were at home. About 10 p.m. she went to bed. Sometime after 11 p.m.
somebody started to ring the doorbell. Then she heard men’s voices: “[Applicant’s
name and patronymic], open the door, we know you are there”. They did not open
the door since they did not know who it was. The men threatened to force the
door. They broke the first door. She telephoned the police and told them that
someone was trying to break into the flat, and was told to wait for a police
squad. She and her parents gathered in the kitchen, waiting for the police to
arrive. They then heard the balcony windows and the balcony door being broken.
Two or three officers wearing grey-black uniforms entered the kitchen. They
were wearing helmets and black steel toe-cap boots and were armed. They told
her and her parents to lie down. She lay down; her father went down on all
fours so as to comply with the order, but the officers in black uniforms pushed
him onto his back and he fell face down, hitting himself against the coffee
table. The officers handcuffed the applicant and two of them started kicking
the applicant on his back and sides. The applicant asked them what they were
doing, to which the officers and others in plain clothes, who by that time had
also entered the flat, replied that they should have been let in the door at
once and not been angered. M. told the officers not to touch the applicant,
that he was not in good health, and asked to call an ambulance. The officers
asked her to put some clothes on the applicant. She put sports pants on the
applicant, prior to which the handcuffs were taken off him. She then saw the
officers dragging the applicant by his hands and feet down the stairs and
outside and putting him in the police car. The applicant later told her that he
had two broken ribs.
On 10 July 2002 the investigator questioned
the applicant, who submitted as follows. Two officers wearing black uniforms,
helmets and boots entered the flat through the window. One of them said “Muzzle
to the ground” (“Лечь мордой на землю”). The applicant obeyed
and lay down on the floor. The officers started kicking him on his body. They
told him that they were beating him for slandering the police. Then they lifted
him up and took him to the police car. He did not resist. At his request an
ambulance was called twice for him at the police station. He was then taken to
the Traumatology Centre, where he was diagnosed with two broken ribs.
On 12 July 2002 the investigator questioned
officer T. of the OMON. According to T’s submission, early in the morning on 7 February
2002 he and three other officers of the special police forces, Ts., A. and L.,
went to assist the police in the applicant’s arrest. He repeatedly knocked on
the door of the applicant’s flat and asked for it to be opened, but in vain.
They broke the external door, but failed to force the metal internal door. He then
ordered officers Ts. and A. to enter the flat through the window with the help
of climbing equipment. Ts. and A. got into the flat. The door was then opened
for T. and the other officers waiting outside. T. saw the applicant, an elderly
man, lying on the floor. The latter made no health-related complaints and showed
no signs of injury. A hunting rifle was found in the flat. The applicant showed
no resistance, but refused to go to the police car. After the handcuffs were
removed from the applicant, T. and other officers seized the applicant by his
arms and legs and put him in the police car. The applicant did not resist.
Officers A. and Ts. told T. that the applicant had not resisted when they had
broken into the flat, and that no physical force had been applied to him.
On 15 July 2002 the
investigator questioned OMON officers Ts. and A., who submitted that they had entered
the applicant’s flat through the window. They identified themselves as police
officers and asked the applicant to lie down, which he did, following which he
was handcuffed. The applicant showed no resistance, and therefore no physical
force was applied to him. They further submitted that when using climbing
equipment they usually wore sneakers rather than boots. They did not participate
in taking the applicant downstairs, but they saw other police officers putting
the applicant inside the police car, the latter bawling and shouting.
On 7 August 2002 the
applicant underwent an expert forensic medical examination. He was diagnosed
with a closed blunt injury to the thoracic cage, accompanied by fractures to
ribs 8 and 9 on his right side, but with no damage to internal organs. The
injuries were found to have been caused by blows administered by hard blunt objects
(a fist or booted feet). They were found to have resulted in moderately severe
damage to the applicant’s health. The expert had insufficient material to
establish the time when the injuries might have occurred (expert examination
no. 358/02 of 7 August 2002).
On 9 August 2002 the investigator questioned
police officer Sh., the officer in charge of the applicant’s arrest. He
submitted that on 6 February 2002 at about 9 p.m. he, police officers K.
and S., and two other police officers went to the applicant’s address. Until
midnight they attempted unsuccessfully to enter the flat, following which Sh. telephoned
the officer on duty at the police station and asked for the OMON to be sent
over. Some time later four OMON officers arrived. Two OMON officers entered the
flat through a window. Sh. heard the sound of breaking glass and some commotion,
and had the impression that there was some sort of struggle going on inside the
flat. Several minutes later the door to the flat was opened, the two OMON
officers entered first and inspected the flat, then the police officers went
in. The applicant’s wife was calling the OMON officers “sadists” and
“fascists”, and saying “why did you have to do that to him” (“зачем вы его так”), she was
also saying something about a torn boot and asking to call an ambulance for her
husband. The OMON officers who had entered the flat through the window were
wearing sneakers. The applicant was lying face down on the kitchen floor, his
hands handcuffed behind his back. He was wearing underclothes. At Sh.’s
request, the applicant’s daughter put sports pants on him. Sh. then took the
handcuffs off the applicant so that he could get up and proceed to the police
car. However, the applicant refused to get up; he moaned and called the OMON
officers “sadists”. He did not say that he had been subjected to any violence
by the OMON officers. Sh. noticed that the applicant was sweaty and assumed
that he had showed resistance during his arrest. The applicant refused to go to
the police car and was taken to it against his will by the police officers.
While still in the flat Sh. contacted the officer on duty at the police station
and asked him to call an ambulance to the police station for the applicant. The
ambulance medic examined the applicant at the police station, said that he
might have broken ribs, gave him an injection and confirmed that he could be
detained in the remand prison.
On 15 August 2002 the criminal proceedings were
discontinued. The investigator, having examined the above evidence, concluded
that the applicant might have broken his ribs while he was being placed inside
the police car against his will.
On 10 September 2002 that decision was quashed by
the prosecutor on account of the investigator’s failure to question police
officers G., N. and Sam., OMON officer L., and duty officers B. and St., to
carry out confrontations between the applicant and his wife and daughter, and
OMON officers Ts. and A., and to question the forensic medical expert on the
possibility that the applicant had sustained his injury while being placed in
the police car.
On 2 October 2002 the investigator
questioned duty officer B., who submitted that the applicant had no visible
injuries when he arrived at the police station, but started complaining about
pain in his back. An ambulance was called for him. The ambulance medic examined
the applicant, diagnosed him with serious contusions and said that no
hospitalisation was required. According to duty officer B, during his period of
duty nobody subjected the applicant to any violence.
On 5 October 2002 a
confrontation was carried out between the applicant’s wife M., and officer A.
On 8 and 24 October 2002 confrontations were carried out between the applicant
and officers Ts. and A. The applicant maintained that he had been beaten up and
had sustained his injuries as a result of beatings by A. and Ts.
In the meantime, on
10 October 2002 the proceedings were again discontinued. The investigator
mentioned that he had carried out confrontations between the applicant and officers
Ts. and A., and between the applicant’s wife and officer A. The investigator
concluded that it had not been confirmed that injuries had intentionally been
inflicted on the applicant by the police officers.
As soon as the applicant learnt of the above
decision he challenged its lawfulness before the Tverskoy District Court (Moscow).
On 31 January 2006 the
Tverskoy District Court found the decision of 10 October 2002 unlawful and
unjustified and ordered the Prosecutor’s Office of the Savelovskiy District to
remedy the shortcomings in the investigation. The court noted that the decision
of 10 October 2002 relied on the results of the confrontation between the
applicant and officer A., whereas that confrontation had not been conducted
until 24 October 2002. The court further noted that the investigator had
failed to explain why he did not trust the submissions made by the applicant,
his wife M., and their daughter, that he had made no assessment of how the
applicant’s injuries as established by the forensic medical expert had been
inflicted, and that he had not resolved the contradictions in the evidence.
On 14 February 2006 the proceedings were
resumed.
On 22 February 2006 the investigator questioned
the applicant again. The applicant confirmed his account of the events. He
further submitted that following his release from custody in June 2002 he had
been diagnosed with a brain haematoma, which he had had removed by surgery in
July 2002. The applicant claimed that the haematoma was also the result of his
beatings by the OMON officers. The applicant confirmed that he had had a
hunting rifle in his flat at the time of his arrest, that he still had it, and
that he had legal permission to have it.
On 20 March 2006 the proceedings were again
discontinued, the conclusion having again been reached that the fact of
intentional infliction of injuries on the applicant by the police officers had
not been established.
On 16 June 2006 the Savelovskiy District
Prosecutor’s Office quashed that decision and resumed the proceedings. It
indicated that in the course of the additional investigation it would be
necessary to question all the police officers who had participated in the
applicant’s arrest, to question the ambulance doctor who had examined the
applicant at the police station, to arrange a forensic medical examination in
order to establish whether the applicant could have sustained his injuries
(broken ribs) by falling on the floor (once or several times) or on any other
surface, and to determine the origin of the brain haematoma the applicant was
later discovered to have: in particular, whether, in the absence of any visible
injuries at the applicant’s initial examination, it could have been caused by a
blow that left no visible external haematoma. It was also recommended that the
legal basis for the application of physical force by the police be studied.
On 20 and 22 June 2006 the
investigator questioned police officers G., St., and N., and OMON officer Ts.
was questioned again. In the course of the investigation it turned out to be impossible
to identify the ambulance doctors who had examined the applicant at the police
station owing to the remoteness of events in question. It also turned out to be
impossible to hold a forensic medical examination in order to determine whether
the applicant could have received his injuries as a result of a fall on the
floor, as the applicant’s medical file was with the Babushkinskiy District
Court.
On 16 July 2006 the
proceedings were discontinued. The investigator arrived at the conclusion that
physical force had been applied to the applicant by OMON officers Ts. and A.
when the latter had entered the applicant’s flat as a result of his refusal to
comply with their lawful requests. The relevant part of the decision reads as
follows:
“... In accordance with sections 11 § 7 and 13 of the Federal
law on the militia, police officers may arrest and detain those in respect of
whom it has been decided to apply a custodial measure and apply physical force
thereto if nonviolent methods do not secure the fulfilment of their duties. In
the present case [the applicant] refused to comply with the lawful requests of
the police, namely, in the beginning [he] did not open the door, and afterwards
when A. and Ts. entered the flat through the window ... and opened the front
door [the applicant] refused to proceed to the police car, as a consequence of
which physical force was applied to [him] and he was carried to the police car
but actively resisted being put inside the car ... In view of the foregoing,
there are sufficient grounds to believe that [the applicant] had also resisted
when [OMON] officers A. and Ts. had entered the flat. Moreover, the police
officers had been warned that [the applicant] was armed with a hunting gun,
which forced them to take resolute action ...”
On 30 November 2006 the Tverskoy District Court
(Moscow) found the decision of 16 July 2006 lawful and justified.
On 20 June 2007 the Moscow City Court upheld that
judgment on appeal.
II. RELEVANT DOMESTIC LAW
A. Criminal investigation
The Code of Criminal Procedure of the Russian
Federation (Law no. 174-FZ of 18 December 2001, in force from 1 July
2002, “the Code”) states that a criminal investigation may be initiated by an
investigator or prosecutor upon a complaint by an individual (Articles 140 and
146). Within three days of receipt of such a complaint the investigator or
prosecutor must carry out a preliminary inquiry and make one of the following
decisions: (1) to open criminal proceedings if there are reasons to
believe that a crime has been committed; (2) to decline to open criminal
proceedings if the inquiry has revealed that there are no grounds to initiate a
criminal investigation; or (3) to refer the complaint to
the appropriate investigating authority. The complainant must be notified of
any decision taken. The decision not to open criminal proceedings is amenable
to appeal to a higher prosecutor or a court of general jurisdiction (Articles
144, 145 and 148).
The
Code provides for judicial review of a decision or (in)action on the part of an
inquirer, investigator or prosecutor which has affected the complainant’s constitutional
rights or freedoms. The judge is empowered to verify the lawfulness and
reasonableness of the decision/(in)action and to grant the following forms of
relief: (1) to declare the impugned decision/(in)action unlawful or
unreasonable and to order the authority concerned to remedy the violation; or
(2) to reject the complaint (Article 125).
B. Scope and time-limits of trial
The Code provides that a case may be tried by a
court only with respect to the defendant and only on the charges brought
against him in the case. The charges may be changed in court if this does not
worsen the position of the defendant or violate his right to defence (Article
252).
The Code provides that within thirty days of receipt of the case file
(fourteen days if the defendant is detained in custody), the judge must take
one of the following decisions: (1) to refer the case to a competent
court; (2) to fix a date for a preliminary hearing (предварительное
слушание); or (3) to
fix a date for trial (Article 227). The trial must begin no later than fourteen
days after the judge has fixed the trial date (Article 233 § 1). There are no
restrictions on fixing the date of a preliminary hearing. The duration of the
trial is not limited. The appeal court must start the examination of the appeal
no later than one month after its receipt (Article 374).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
The applicant complained that during the night
of 6 February to 7 February 2002 he had been beaten up by the police and
that the investigation into his complaint on that account had been ineffective.
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
The Court notes that the applicant’s 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. Submissions by the parties
The applicant maintained his complaint.
The Government relied on the
results of the investigation into the applicant’s allegations of ill-treatment
and submitted that physical force had been applied to the applicant lawfully as
he had refused to obey the lawful demands of the police.
2. The Court’s assessment
(a) Alleged inadequacy of the investigation
(i) General principles
The Court reiterates that where an individual
raises an arguable claim that he has been seriously ill-treated in breach of
Article 3, that provision, 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 (see Assenov
and Others v. Bulgaria, 28 October 1998, § 102, Reports
of Judgments and Decisions 1998-VIII).
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; Mahmut Kaya v. Turkey, no. 22535/93,
§ 124, ECHR 2000-III; and Mikheyev v. Russia, no. 77617/01, § 107,
26 January 2006).
The investigation of arguable 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. They must take all reasonable steps available to them to
secure the evidence concerning the incident, including, inter
alia, taking a detailed statement concerning the allegations from
the alleged victim, and obtaining eyewitness testimony, forensic evidence and,
where appropriate, additional medical certificates apt to provide a full and
accurate record of the injuries and an objective analysis of the medical
findings, in particular as regards the cause of the injuries. Any deficiency in
the investigation which undermines its ability to establish the cause of
injuries or the identity of the persons responsible will risk falling foul of
this standard (see Mikheyev, cited above, § 108, and Nadrosov v.
Russia, no. 9297/02, § 38, 31 July 2008).
The investigation into the alleged ill-treatment
must be prompt. There must be a sufficient element of public scrutiny of the
investigation or its results; in particular, in all cases the complainant must
be afforded effective access to the investigatory procedure (see, Mikheyev,
cited above, § 109; Maksimov v. Russia, no. 43233/02, § 83, 18 March 2010; and Lopata
v. Russia, no. 72250/01,
§ 110, 13 July 2010).
Finally, the investigation into alleged ill-treatment
by State agents should be independent (see Öğur
v. Turkey [GC], no. 21954/93, ECHR 1999-III, §§ 91-92; Mehmet Emin Yüksel v. Turkey, no. 40154/98,
§ 37, 20 July 2004; Menesheva v. Russia, no. 59261/00,
§ 67, ECHR 2006-III; and Oleg Nikitin v. Russia, no.
36410/02, § 35, 9 October 2008).
(ii) Application of the above principles in the
present case
Turning to the circumstances of the present
case, the Court observes that on 7 February 2002 the applicant submitted
to the head of Moscow remand prison IZ-50/1 a complaint to the effect that
during his arrest in the night of 6 to 7 February 2002 he had been subjected to
ill-treatment by the police and had sustained bodily injuries (see paragraph 28
above). The matter was, hence, duly brought before the competent authorities.
The existence of the applicant’s injuries was
confirmed on the same day by ambulance medics who discovered that the applicant
had an injury in the region of his ribs (see paragraph 25 above), and later in
the day by trauma medics who diagnosed the applicant with fractures to ribs 8
and 9 on his right side (see paragraph 26 above). The applicant’s claim,
therefore, revealed itself to be “arguable”, and the domestic authorities were
placed under an obligation to conduct an effective investigation satisfying the
above-mentioned requirements of Article 3 of the Convention.
In this connection, the Court notes that the
prosecution authorities who were made aware of the applicant’s ill-treatment
carried out a preliminary investigation which did not result in a criminal
prosecution. The applicant’s ill-treatment complaints were also the subject of
examination by the domestic courts. The issue is consequently not so much
whether there was an investigation, since the parties did not dispute that
there was, 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 notes, first of all, that the criminal
investigation into the applicant’s allegations of ill-treatment was instituted
three months after the events complained of, on 15 May 2002 (see paragraph
32 above). As a result, it was not until July-August 2002, that is, six months
after the alleged beatings, that most of those involved in the incident were
questioned for the first time. It was also not until August 2002 that the
forensic medical expert examined the applicant’s medical file and, for the
obvious reason of the remoteness of the events in question, was unable to establish
the time when the applicant’s injuries might have occurred (see paragraph 38
above). The delay in the institution of the criminal proceedings made it
impossible later in the investigation to identify the ambulance doctors who had
examined the applicant at the police station and to hold a forensic medical
examination so as to determine whether the applicant could have received his
injuries as a result of his fall on the floor (see paragraph 51 above). The
Court has previously held that any unjustified delay in the institution of
criminal proceedings and the gathering of essential evidence constitutes such a
serious omission that the prospect of remedying the resulting damage by any
subsequent investigation is rather doubtful (see, mutatis mutandis, Nechto
v. Russia, no. 24893/05,
§ 87, 24 January 2012).
The Court further notes that in the period
between 15 August 2002 and 16 July 2006 the proceedings were
discontinued and resumed on four occasions because the investigation had been
found to be incomplete and inadequate. The Court reiterates that repeated
remittals of a case for further investigation may disclose a serious deficiency
in the domestic prosecution system (see Filatov v. Russia, no.
22485/05, § 50, 8 November 2011; Gladyshev
v. Russia, no. 2807/04, § 62, 30 July 2009; and Alibekov
v. Russia, no. 8413/02, § 61, 14 May 2009).
The Court finds it difficult to understand that
none of the decisions by which the proceedings were discontinued contained a
mention of the conclusion of the forensic medical expert as to the probable
cause of the applicant’s injury - the impact of blows administered by hard
blunt objects such as a fist or booted feet - which fully supported the
applicant’s account of events and the statements made by his wife and his
daughter, both of whom had been present at his arrest.
The Court is also concerned at the fact that one
of the decisions by which the proceedings were discontinued relied on the
results of the confrontation between the applicant and one of the OMON
officers, despite the fact that that confrontation was not carried out until
two weeks after the decision in question (see paragraphs 43, 44 and 46 above).
Moreover, the conclusions
reached by the investigator appear unconvincing and sit ill with the existing
evidence. In the final decision on termination of the criminal proceedings the
investigator arrived at the conclusion that OMON officers Ts. and A. had
applied physical force to the applicant because the latter had failed to obey
their lawful orders (see paragraph 52 above). At the same time, the officers in
question both submitted that the applicant had showed no resistance when they
entered the flat through the window (see paragraph 37 above). Furthermore, no
attempt was made to ascertain whether the brain haematoma the applicant was
discovered to have in June 2002 had also been caused by the physical force
applied to him by OMON officers Ts. and A., or to assess the proportionality of
the physical force applied by the officers in question to the applicant, a
sixty-three year-old man at the material time.
In the light of the shortcomings identified
above, the Court concludes that the investigation into the alleged
ill-treatment was ineffective and the domestic authorities failed to make any
meaningful attempts to bring those responsible for the alleged ill-treatment to
account.
There has accordingly been a violation of
Article 3 of the Convention under its procedural limb.
(b) Alleged ill-treatment of the applicant
(i) General principles
The Court reiterates that persons in custody are
in a vulnerable position and that the authorities are under a duty to protect
their physical well-being (see Gladyshev, cited above, § 51; 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; Ribitsch v. Austria,
4 December 1995, § 38, Series A no. 336; and Krastanov v. Bulgaria,
no. 50222/99, § 53, 30 September 2004).
The Court reiterates that to fall under Article 3 of the Convention ill-treatment must attain a minimum
level of severity. The standard of proof relied upon by the Court is that of “beyond reasonable doubt”
(see Avşar
v. Turkey, no. 25657/94, § 282, ECHR 2001-VII). Such
proof may follow from the coexistence of sufficiently strong, clear and
concordant inferences or of similar unrebutted presumptions of fact. Where the
events in issue lie wholly or in large part within the exclusive knowledge of
the authorities, as in the case of persons within their control in custody,
strong presumptions of fact will arise in respect of injuries occurring during
such detention. Indeed, the burden of proof may be regarded as resting on the
authorities to provide a satisfactory and convincing explanation (see Gladyshev,
cited above, § 52; Oleg Nikitin, cited above, § 45; and Salman v. Turkey [GC],
no. 21986/93, § 100, ECHR 2000-VII).
Where domestic proceedings have taken place it
is not the Court’s task to substitute its own assessment of the facts for that
of the domestic courts and, as a general rule, it is for those courts to assess
the evidence before them (see Klaas
v. Germany, 22 September 1993, § 29, Series A no. 269).
Although the Court is not bound by the findings of the domestic courts, in
normal circumstances it requires cogent elements to lead it to depart from the
findings of fact reached by those courts (see Matko v. Slovenia, no.
43393/98, § 100, 2 November 2006). The Court must, however, apply a
particularly thorough scrutiny where the applicant raises an arguable complaint
of ill-treatment (see Ribitsch, cited above, § 32, and Avşar, cited above,
§ 283).
(ii) Application of the above principles in the
present case
Turning to the facts of the present case, the
Court observes that immediately after the alleged beatings, on 7 February
2002, the ambulance medics discovered that the applicant had an injury in the
region of his ribs (see paragraph 25 above), and that later the same day the
applicant underwent a chest radiograph and was diagnosed with fractures to ribs
8 and 9 on his right side (see paragraph 26 above). Subsequently, the forensic
medical expert diagnosed the applicant with closed blunt injury to the thoracic
cage accompanied by fractures to ribs 8 and 9 on his right side, without damage
to internal organs. The injuries were found to have been caused by blows
administered by hard blunt objects (a fist or booted feet). They were found to
have resulted in moderately severe damage to the applicant’s health (see
paragraph 38 above). It falls therefore to the domestic authorities to provide
a plausible explanation as to the origin of those injuries.
The Court observes that the domestic authorities
did not deny that the applicant had sustained his injuries at the hands of
officers Ts. and A. when they had entered the applicant’s flat through the
window. They claimed, however, that the physical force had been applied because
the applicant had resisted their lawful demands (see paragraphs 52 and 62
above). The Court notes that the domestic authorities failed to make an
assessment of whether the recourse to physical force by officers Ts. and A. was
made strictly necessary by the applicant’s own conduct (see paragraph 75
above). It will therefore have to make such assessment on the basis of the
evidence in its possession.
The Court observes that officers Ts. and A of
the special police forces, who were specially trained in the art of combat,
were wearing uniforms, flak jackets and helmets and were armed, applied force
against the applicant, a man who was sixty-three years old at the time of the
arrest, who was wearing nothing but his underclothes since the events in
question took place at night-time, was holding no arms, and did not show any
active resistance when asked to lay face down on the floor, or try to escape.
It is clear that officers Ts. and A. were placed in a considerably superior
situation, in terms of exercising effective control over it, to that of the
applicant, who had no particular strength or skills or even the physical
fitness to resist them.
Regard being had to the above considerations and
the gravity of the damage inflicted on the applicant as a result of the application
of physical force by officers Ts. and A., the Court finds that the Government
have failed to show that the injuries in question could have been caused by an
application of force which was appropriate in the circumstances. The Court
therefore finds that the force used was manifestly disproportionate and
amounted to inhuman and degrading treatment of the applicant.
The applicant was therefore subjected to
ill-treatment in breach of Article 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE
CONVENTION
The applicant complained that the length of the
criminal proceedings against him had been incompatible with the “reasonable
time” requirement of Article 6 § 1 of the Convention, which provides, in its
relevant part, as follows:
“In the determination of ... any criminal charge against him,
everyone is entitled to a ... hearing within a reasonable time by [a] ...
tribunal ...”
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. Submissions by the parties
The applicant maintained his complaint. He
asserted that the domestic court had not dealt with the case diligently and had
deliberately delayed the proceedings. The applicant referred in this regard to
the many suspensions of the proceedings, the multiple arbitrary changes of the
presiding judge, each requiring an examination de
novo, and the scheduling of his forensic psychiatric examination.
The Government explained the length of the
proceedings by the complexity and the volume of evidence in the case, which had
required the questioning of a large number of witnesses and victims and the
examination of a considerable amount of evidence. They submitted that the
length of the proceedings was also partly due to the frequent illnesses of the
defendants. The Government further argued that the court had taken all
necessary measures to reduce the length of the proceedings and concluded that,
in view of the particular circumstances of the case, the length of the
proceedings against the applicant had complied with the requirements of Article
6 § 1 of the Convention.
2. The Court’s assessment
(a) Period to be taken into consideration
The Court reiterates that in criminal matters
the “reasonable time” referred to in Article 6 § 1 begins to run as soon as a
person is “charged”; this may occur on a date prior to the case coming before
the trial court (see Deweer v. Belgium, 27 February 1980, § 42,
Series A no. 35), such as the date of arrest, the date when the person
concerned was officially notified that he or she would be prosecuted, or the
date when preliminary investigations were opened (see Wemhoff v. Germany,
27 June 1968, § 19, Series A no. 7; Neumeister v. Austria, 27 June
1968, § 18, Series A no. 8; and Ringeisen v. Austria, 16 July
1971, § 110, Series A no. 13). “Charge”, for the purposes of
Article 6 § 1, may be defined as “the official notification given to an
individual by the competent authority of an allegation that he has committed a
criminal offence”, a definition that also corresponds to the test whether “the
situation of the [suspect] has been substantially affected” (see Deweer,
cited above, § 46).
Applying these principles to the facts before
it, the Court finds that the relevant date in the present case was 10 January
2000, when criminal proceedings were instituted against the applicant. The
proceedings ended with the decision of the Moscow City Court of
13 February 2008 upholding the applicant’s conviction on appeal. They
lasted, therefore, over eight years and two months, before the investigation
authority and two levels of jurisdiction.
(b) Reasonableness of the length of proceedings
The Court reiterates that the reasonableness of
the length of proceedings is to be assessed in the light of the particular
circumstances of the case, regard being had to the criteria laid down in the
Court’s case-law, in particular the complexity of the case, the applicant’s
conduct, and the conduct of the competent authorities. On the latter point,
what is at stake for the applicant also has to be taken into consideration
(see, among many other authorities, Rokhlina v. Russia,
no. 54071/00, § 86, 7 April 2005; Nakhmanovich v. Russia,
no. 55669/00, § 95, 2 March 2006; and Gubkin v. Russia,
no. 36941/02, § 165, 23 April 2009).
The Court notes that it has already examined a
similar complaint in the case of the applicant’s four co-defendants in the
domestic proceedings and found a violation
of Article 6 § 1 of the Convention in respect of the first three
applicants and no violation in respect of the fourth applicant (see Konashevskaya
and Others v. Russia, no. 3009/07,
§§ 44-56, 3 June 2010). The Court accepted that the case had been
rather complex yet found that circumstance to be insufficient in itself to account for the length of the
proceedings. The Court further examined the conduct of the domestic authorities
and noted the Government’s failure to provide any satisfactory explanation for
the period of one year and one month that it took the trial court to schedule
the first hearing, to submit an accurate account of the judicial activity so as
to enable the Court to see how many court hearings were scheduled and how many
of them took place, and to provide any argument in response to the applicant’s
assertion that six different judges had taken on the examination of the case.
The Court also noted the untimely separation of the co-defendants’ cases from
the applicant’s case.
The Court reiterates its previous
considerations. It further notes that the domestic court itself had already
acknowledged in May 2004 that the proceedings had taken on a protracted
character (see paragraph 14 above). The Court notes, furthermore, that while the
forensic examination of the applicant was ordered in February 2006, it was not
until nine months later, in November 2006, that he was invited to appear for
the examination for the first time (see paragraph 15 above). No explanation was
provided by the Government as to why it took the domestic authorities so long. In
the light of these facts, the Court cannot but conclude that the national
authorities did not act with due diligence.
Turning to the applicant’s own conduct, the
Court observes that on two occasions the applicant failed to appear for his
forensic psychiatric examination, on 14 November and 5 December 2006, which
delayed the proceedings by three weeks. Further, on several occasions between
June and November 2007 he failed to appear before the trial court (see
paragraphs 16-17 above), which resulted in a five-month delay in the
proceedings. Nothing in the submitted material indicates that there were other
delays which could be attributed to the applicant’s conduct. The Court thus
finds that the delay resulting from the applicant’s own conduct was rather
limited compared to the overall length of the proceedings.
Having regard to the foregoing, the Court
considers that the length of the proceedings went beyond what may be considered
reasonable in this particular case.
There has accordingly been a breach of Article 6
§ 1 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly, the applicant complained under Article
6 §§ 1 and 3 (c) of the Convention that the trial court had convicted
him of a charge that had not been pressed against him by the prosecution, and
about an alleged violation of his right to defence.
The Court has examined the above complaints, as
submitted by the applicant. However, in the light of all the material in its
possession, and in so far as the matters complained of are within its
competence, 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 is manifestly
ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4
of the Convention.
IV. 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.”
The Court points out that under Rule 60 of the
Rules of Court any claim for just satisfaction must be itemised and submitted
in writing together with the relevant supporting documents or vouchers,
“failing which the Chamber may reject the claim in whole or in part”.
On 31 March 2010 the Court invited the
applicant to submit a claim for just satisfaction by 2 June 2010. He did
not submit any such claim.
In such circumstances the Court would usually
make no award. In the present case, however, the Court has found a violation of
the applicant’s right not to be subjected to inhuman and degrading treatment.
Since this right is of an absolute character, the Court exceptionally finds it
possible to award the applicant 7,500 euros (EUR) in respect of non-pecuniary
damage (see Chember v. Russia, no. 7188/03, § 77, ECHR 2008, and Chudun
v. Russia, no. 20641/04,
§ 129, 21 June 2011, with further references), plus any tax
that may be chargeable to the applicant.
The Court considers it appropriate that the
default interest should be based on the marginal lending rate of the European
Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaints under
Article 3 of the Convention about alleged ill-treatment by the police and
lack of an effective investigation, and the complaint under Article 6 § 1 of
the Convention about the length of the proceedings admissible and the remainder
of the application inadmissible;
2. Holds that there has been a violation of
Article 3 of the Convention on account of the authorities’ failure to carry out
an effective investigation into the applicant’s allegations of ill-treatment;
3. Holds that there has been a violation of
Article 3 of the Convention on account of beatings inflicted on the applicant
by the police at the time of his arrest;
4. Holds that there has been a violation of
Article 6 of the Convention on account of the length of the proceedings against
the applicant;
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, EUR 7,500 (seven
thousand five hundred euros), plus any tax that may be chargeable, in respect
of non-pecuniary damage, to be converted into Russian roubles at the rate
applicable on the date of settlement:
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amount at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points.
Done in English, and notified in writing on 23 October 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
