FIRST SECTION
CASE OF
ABLYAZOV v. RUSSIA
(Application no.
22867/05)
JUDGMENT
STRASBOURG
30 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 Ablyazov v. Russia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Nina Vajić, President,
Anatoly Kovler,
Peer Lorenzen,
Elisabeth Steiner,
Khanlar Hajiyev,
Linos-Alexandre Sicilianos,
Erik Møse, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 9 October 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
22867/05) 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 Fuat Nailyevich Ablyazov (“the
applicant”), on 14 May 2005.
The applicant was represented by Mr S. Kiryukhin,
a lawyer practising in Orsk. 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 police custody and that the subsequent
investigation into these allegations had not been effective.
On 12 February 2009 the 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
THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1970 and lived, prior
to his arrest, in Orsk, Orenburg Region.
A. The applicant’s arrest and the investigation into
the alleged ill-treatment
At 1 p.m. on 23 July 2003 the
applicant was arrested on suspicion of manslaughter. According to the
applicant, a certain investigator, K., and officers from the police department
of the Oktyabrskiy District of Orsk beat him severely in order to obtain a
confession. K. hit the applicant in the jaw whereupon he fell down onto the
floor. A police officer then hit him on the head with an object which appeared
to be a mobile phone. Other officers kicked him many times. A plastic bag was
placed over his head and the applicant then lost consciousness. After an
ambulance had been summoned by the police officers and medical help had
arrived, the beatings ceased.
On 24 July 2003 the applicant’s lawyer submitted
a request for the applicant to be examined by a forensic medical expert. The
examination took place on the same day. According to the Government, it was
conducted some time after 11.30 a.m. The expert established that the applicant
had a bruise on his left jaw, caused by the impact of a hard blunt object
approximately twenty-four hours beforehand. The expert also noted that the
applicant complained of pain in the parietal region of his head as well as
sickness and dizziness. In the expert’s opinion, the applicant did not sustain
any serious physical damage .
On 25 July 2003 the applicant was transferred to remand
prison no. IZ 56/2 in Orsk. Upon arrival, he was examined by a
doctor, who recorded in the registration log that the applicant had no visible
injuries.
On 12 August 2003 the applicant filed a complaint
about ill-treatment with the district prosecutor’s office.
On 15 August 2003 the deputy district
prosecutor Ch. dismissed the applicant’s complaint. In his decision, he stated as
follows:
“In response to the complaint, [the prosecutor’s office] ...
studied the materials from the criminal case file [against the applicant].
It has been established that ... the investigation in respect
of [the applicant] has been in compliance with the rules of criminal procedure
and that the [applicant’s] allegations of ill-treatment have not been
confirmed. This finding is based, inter alia, on the results of the
forensic medical examination undergone by [the applicant].”
On 1 October 2003 the applicant filed
another complaint with the district prosecutor’s office about the beatings he
had allegedly received in police custody. On 3 October 2003 the investigator
K.- who was also in charge of the criminal investigation against the applicant
- dismissed his allegations as unsubstantiated based on the statements made by
three policemen. On 10 October 2003 the deputy district prosecutor dismissed
the applicant’s complaint once again.
On 20 December 2003 the deputy district
prosecutor upheld the decision of 3 October 2003 on appeal.
On 29 August 2005 the acting district prosecutor
set aside the decision of 3 October 2003 noting that the inquiry into the
applicant’s allegations of ill-treatment had been incomplete. In particular,
the investigator had failed to question the applicant and the alleged
perpetrators of the ill-treatment and to identify and question other possible
witnesses.
At the beginning of September 2005 the
Oktyabrskiy district prosecutor questioned the applicant, who gave a
description of the police officer who had allegedly hit him with “an object
looking like a mobile phone”. The prosecutor then questioned police officer Z.
who denied beating the applicant and further claimed that none of the police
officers of the Oktyabrskiy district police station matched the description
given by the applicant. He did not remember whether the applicant had sustained
any visible injuries immediately after the arrest. The prosecutor also questioned
the head of the temporary detention centre where the applicant had been held on
23 and 24 July 2003 and the doctor who had admitted the applicant to the remand
prison on 25 July 2003. They both stated that the applicant had not had any
visible injuries and that there were no complaints of ill-treatment by
him recorded in the registration logs of their respective detention facilities.
On 8 September 2005 investigator T. refused to
open criminal proceedings, finding that there was no evidence of ill-treatment.
On 7 November 2005 the district prosecutor set that decision aside and
ordered an additional inquiry.
On 10 November 2005 the investigator T. again
refused to open a criminal investigation into the applicant’s allegations. In
order to obtain further evidence, the investigator questioned the applicant’s
neighbours who had seen him prior to the arrest on 23 July 2003. S.
confirmed that the applicant had had no visible injuries on that day. D. did
not remember if the applicant had evidence of any injuries prior to the arrest.
Sosh. submitted that the applicant’s girlfriend had asked her specifically to
say, if questioned, that the applicant had no injuries.
On 18 January 2006 the Oktyabrskiy District
Court found the decision of 10 November 2005 to be unlawful. The court considered
that the prosecutor’s office had not established when, where and under what
circumstances the applicant had received the injury noted by the forensic
expert on 24 July 2003. On 30 January 2006 the district prosecutor quashed
the decision of 10 November 2005 and ordered a further inquiry.
On 2 February 2006 the investigator G. issued a
fourth decision refusing to initiate criminal proceedings. He reiterated the
findings of the previous inquiries, concluding, in particular, as follows:
“... the evidence collected disproves the [applicant’s]
allegations that the investigator K. and [the police officers] put any physical
or psychological pressure on [him]. It follows that [the investigator and the
police officers] acted in compliance with the law, they did not abuse their
authority and did not infringe the [applicant’s] rights and interests. These
conclusions are confirmed by the evidence collected and numerous witness
statements. There is no sufficient ground to believe that the injuries [the
applicant] had when examined on 24 July 2003 were sustained by him after he
was taken into custody. Furthermore, there is sufficient information ...
showing that no physical or psychological pressure was put on [the applicant]
by the investigator K. and [the police officers].”
On 15 February 2006 the deputy district prosecutor
set the decision of 2 February 2006 aside finding that the investigator
had failed to comply with the decision of 18 January 2006. In particular, he
had not established when, where and under what circumstances the applicant had sustained
the injuries.
On 7 March 2006 the investigator G. issued a
fifth decision refusing to initiate criminal proceedings, finding that the existing
evidence refuted the applicant’s allegations of ill-treatment.
On 10 October 2007 the District Court partly
upheld a complaint by the applicant and found the decision of 7 March 2006
unlawful and unsubstantiated. The court noted that the investigator had failed
to conduct a further inquiry and to clarify the circumstances of the matter. On
19 December 2007 the head of the town (Orsk) investigating committee
quashed the decision of 7 March 2006 and ordered a further inquiry.
On 29 December 2007 the investigator N. issued
a sixth decision refusing to open criminal proceedings. As regards the
applicant’s injuries, the investigator stated as follows:
“The fact that the applicant had certain injuries detected in
the course of the examination conducted on 24 July 2003 does not signify
that they were inflicted by [the policemen or the investigator]. There is no causal
link and it is not required to establish when, where and how the applicant had
sustained them.”
On 29 January 2008 the District Court found
the investigator’s decision of 29 December 2007 not to open criminal
proceedings unlawful as he had failed to discover the reasons for the applicant’s
injuries. On 22 February 2008 the deputy head of the investigating
committee attached to the regional prosecutor’s office quashed the decision of
29 December 2007 and referred the matter back for a further inquiry.
On 3 March 2008 a senior investigator, G., issued
a seventh decision refusing to open criminal proceedings. The investigator
reiterated practically verbatim the reasoning set out in the previous decision.
On 31 March 2008 the District Court found the
decision of 3 March 2008 unlawful on the grounds that the investigator had
not provided a plausible and convincing explanation of how the applicant’s
injury had been caused. On 15 May 2008 the Orenburg Regional Court upheld the
decision of 31 March 2008 on appeal.
On 11 April 2008 the deputy head of the
investigating committee attached to the regional prosecutor’s office quashed
the decision of 3 March 2008 and ordered a further inquiry.
Subsequently, the investigators attached to the
regional prosecutor’s office refused to open a criminal investigation into the
applicant’s allegations on five further occasions. The relevant decisions, providing
identical reasoning to that underlying the earlier decisions, were taken on
23 April, 28 June, 8 and 18 July and 20 August 2008. All
these decisions were subsequently quashed by the investigators’ superiors on 18
and 28 June, 8 July and 11 and 20 August 2008 on account of their failure
to clarify the circumstances of the case.
On 30 September 2008 the investigator F. issued
the thirteenth decision refusing to open a criminal investigation. Although he found
no evidence supporting the applicant’s allegations of ill-treatment in police
custody he allowed that the applicant’s injuries could have been caused by his
having been beaten and that a criminal investigation should be opened on
charges of battery but this was not within the jurisdiction of his office. The materials
were transmitted to a district police unit. The applicant’s complaint against
the decision of 30 September 2008 was subsequently dismissed by the
District and Regional Courts on 16 October and 20 November 2008 respectively.
On 13 October 2008 the police investigator refused
again to open a criminal investigation because the statutory time-limit for
criminal liability on the charge of battery had expired. On 18 March 2009
the District Court dismissed a complaint by the applicant against that
decision.
B. Criminal proceedings against the applicant
On an unspecified date the applicant was
committed for trial on a charge of manslaughter before the Oktyabrskiy District
Court of Orsk.
The applicant complained to the trial court
about his ill-treatment. On 17 March 2004 the Oktyabrskiy District Court
ordered an inquiry. On 24 March 2004 the Oktyabrskiy district prosecutor
found that there was no evidence of ill-treatment and refused to open criminal
proceedings.
On 15 June 2004 the Oktyabrskiy District Court
convicted the applicant as charged and sentenced him to eight years’
imprisonment. On 31 August 2004 the Orenburg Regional Court upheld the
judgment on appeal.
C. Civil proceedings
On 11 August 2004 the applicant sued the Orsk Town police department, the Orenburg regional prosecutor’s office and the Ministry of
Finance of the Russian Federation for compensation. He claimed 5,000,000 Russian
roubles (RUB) in respect of non-pecuniary damage sustained as a result of his
ill-treatment, unlawful arrest and conviction.
On 22 April 2005 the Leninskiy District Court of
Orsk dismissed his claim. It referred, in particular, to the results of the
prosecutor’s inquiry into the applicant’s allegations of ill-treatment; the
investigator K.’s decision of 3 October 2003 refusing to open criminal
proceedings against the police officers; and the applicant’s conviction. It
also observed that the applicant’s complaint that the police officers had
beaten him to obtain a confession was unconvincing, given that he had never
confessed to the crime. There was no evidence that the bruise on the applicant’s
face had been the result of ill-treatment by the police officers.
On 16 June 2005 the Orenburg Regional Court
quashed the decision and remitted the matter to the Leninskiy District Court
for fresh consideration.
On 25 August 2006 the
District Court granted the applicant’s claims in part. The court dismissed the
applicant’s allegations of torture as unsupported by any evidence. At the same
time, the court noted that the applicant had been taken into custody in good
health and that he had received an injury while in detention. The respondent
parties failed to provide any explanation as to how that injury had been caused.
The court found that the applicant had been subjected to degrading treatment in
police custody on 23 July 2005 and awarded him RUB 1,000.
On 11 October 2006 the Regional Court
upheld the judgment of 25 August 2005 on appeal.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The applicant complained that he had been
subjected to ill-treatment while in police custody and that the ensuing
investigation had been ineffective in contravention of Article 3 of the
Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
The Government contested that argument. They
submitted, in view of the judicial award in the applicant’s favour, that he had
lost his victim status, even though such an award did not signify that his
rights set out in Article 3 of the Convention had been infringed. The
amount of the award had been commensurate with the severity of his injury. In
the alternative, the Government asserted that the applicant could have
sustained the injuries prior to his arrest, a fact which had been confirmed in
the course of the effective investigation conducted by the authorities in
response to the applicant’s complaint about the alleged ill-treatment in custody.
The investigating authorities had taken all the steps necessary to verify the
applicant’s allegations. They had questioned the witnesses and studied the
medical documents. Both the investigating authorities and the courts had repeatedly
looked into the matter. Accordingly, the national authorities had complied with
their obligation to conduct a thorough and effective investigation.
The applicant maintained his complaint.
A. Admissibility
In so far as the Government argue that the
applicant has lost his victim status in respect of the allegations of
ill-treatment, the Court reiterates that an applicant is deprived of his or her
victim status if the national authorities have acknowledged it either expressly
or in substance and then afforded appropriate and sufficient redress for it (see,
for example, Scordino
v. Italy (no. 1) [GC], no. 36813/97, §§ 178-93, ECHR
2006-V).
As regards the first condition, the Court observes
that the Leninskiy District Court did find that the applicant had been
subjected to degrading treatment while in police custody. The relevant judgment
of 25 August 2006 was upheld on appeal by the Regional Court and became
final on 11 October 2006. Accordingly, the Court accepts that the Russian
authorities acknowledged a violation of the applicant’s rights as set out in
Article 3 of the Convention.
As regards the second condition, namely
appropriate and sufficient redress, the Court observes that the applicant was
granted compensation for the breach of his rights set out in Article 3 of
the Convention. The Court does not consider it necessary, in the circumstances
of the case, to delve into the issue whether the amount of the compensation
received by the applicant constituted sufficient redress. In this connection the
Court reiterates that in cases of wilful ill-treatment by State agents a breach
of Article 3 of the Convention cannot be remedied exclusively through an
award of compensation to the victim. The State authorities are also under an
obligation to conduct an investigation capable of leading to the identification
and punishment of those responsible (see, mutatis mutandis, Vladimir
Romanov v. Russia, no. 41461/02, §§ 78 and 79 in fine, 24 July
2008). This issue, however, is closely linked to the merits of the complaint
about the alleged lack of an effective investigation into the allegations of
ill-treatment in police custody. Accordingly, the Court finds it
necessary to join it to the merits of the complaint and will address it
subsequently.
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. 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).
Ill-treatment must attain a minimum level of
severity if it is to fall within the scope of Article 3.
The assessment of this minimum is relative: it depends on all the circumstances
of the case, such as the duration of the treatment, its physical and mental
effects and, in some cases, the sex, age and state of health of the victim (see
Labita, cited above,
§ 120).
In the context of detainees, the Court has
emphasised that persons in custody are in a vulnerable position and that the
authorities have a duty to protect their physical well-being (see Tarariyeva v. Russia, no. 4353/03, § 73, ECHR 2006-XV;
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 allegations of
ill-treatment must be supported by appropriate evidence. To assess this
evidence, the Court adopts the standard of proof “ beyond reasonable doubt ”
but adds that such proof may follow from the coexistence of sufficiently
strong, clear and concordant inferences or of similar unrebutted presumptions
of fact (see Ireland
v. the United Kingdom, 18 January 1978, § 161
in fine, Series A no. 25). Furthermore, where allegations are
made under Article 3 of the Convention, the Court must employ a
particularly thorough scrutiny (see Ribitsch,
cited above, § 32).
Turning to the circumstances of the present
case, the Court observes that the applicant provided a clear account of the
events (see paragraph 6 above). Furthermore, the Court takes into account the
findings of the domestic judicial authorities (see paragraph 36 above) that the
applicant had sustained his injury while in police custody and accepts that the
applicant made out a prima facie case
in support of his complaint of ill-treatment. The burden therefore rests on the
Government to provide a plausible explanation of how the injury was caused.
The Court notes that the Government did no more
than suggest that the applicant might have sustained an injury prior to his
arrest. In the absence of any evidentiary basis for this conjecture, the Court
considers that the Government failed to rebut the presumption of their
responsibility for the injuries inflicted on the applicant while he was in the charge
of the State. Accordingly, the responsibility for the ill-treatment lay with
the domestic authorities.
The Court further notes that the degree of
bruising found by the forensic expert who examined the applicant and the
subsequent decision by the authorities to conduct a formal inquiry into the
applicant’s allegations of ill-treatment indicate that the injury was sufficiently
serious to come within the scope of Article 3.
In such circumstances, the Court concludes that
there has been a violation of Article 3 of the Convention under its
substantive limb on account of the inhuman and degrading treatment the
applicant was subjected to while in police custody.
2. Adequacy of the investigation
. The Court reiterates
that where an individual raises an arguable claim that he has been seriously
ill-treated by the 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 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, 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 the persons responsible 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 an 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).
Lastly, the Court reiterates that, in a number
of cases concerning alleged ill-treatment in custody where the prosecution of
the alleged perpetrators has been time-barred following lengthy proceedings, it
has noted that the criminal-law system has proved to be far from rigorous in
ensuring the effective prevention of unlawful acts such as those complained of
by the applicants (see, among other authorities, Müdet Kömürcü
v. Turkey (no. 2), no. 40160/05, §
30, 21 July 2009; Salmanoğlu
and Polattaş v. Turkey, no. 15828/03, § 101; 17 March
2009; and Erdoğan
Yılmaz and Others v. Turkey, no. 19374/03, § 57, 14
October 2008).
Turning to the facts of the present case, the
Court observes that the Russian
criminal-law system was similarly ineffective in dealing with the applicant’s
complaints. The initial complaints lodged by the applicant with the
prosecuting authorities did not receive due attention or consideration. The
first complaint was dismissed three days after it was lodged on 12 August
2003. According to the decision which followed, the deputy prosecutor merely
reviewed the material in the applicant’s case file and then concluded that his
allegations of ill-treatment were unfounded. The applicant’s second complaint of
1 October 2003 was also dismissed after a three-day inquiry. The Court
finds it striking that the complaint was assigned by the prosecutor’s office to
the investigator whom the applicant named as being among the alleged
perpetrators of the ill-treatment. Such deficiencies and the slack attitude on
the part of the prosecutor’s office caused, in the Court’s view, a loss of
precious time and complicated the investigation of the applicant’s allegations.
The Court accepts that in the course of the
ensuing inquiries, the prosecutor’s office did take certain measures to clarify
the circumstances of the applicant’s arrest and detention in police custody.
The applicant, the alleged perpetrators and potential witnesses were all
questioned. Nevertheless, having regard to the material in its possession, the
Court cannot but note that the efforts of the prosecutor’s office were focused
rather on the dismissal of the applicant’s complaint than on a thorough
verification of the substance of his allegations. In the course of over seven
years, the applicant’s complaint was dismissed on thirteen separate occasions. Each
time, the applicant appealed and a supervising prosecutor or a court quashed
the relevant decision and ordered a further inquiry noting the relevant
investigator’s failure to fully determine the circumstances of the case. The
Court considers that such remittals of the case for re-examination disclose a
serious deficiency in the criminal investigation which irreparably protracted
the proceedings and resulted in a situation when the prosecution of the alleged
perpetrators became impossible because it was time-barred.
The
foregoing considerations are sufficient to enable the Court to conclude that
the investigation into the applicant’s complaint of ill-treatment in
police custody failed to provide appropriate redress. The applicant may
therefore still claim to be a victim within the meaning of
Article 34 of the Convention. The Court accordingly dismisses the Government’s
objection under this head and finds that there has been a violation of Article 3
of the Convention under its procedural limb.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE
CONVENTION
The applicant complained that the investigation
into his allegations of ill-treatment had been ineffective, contrary to Article 13 of the Convention, which
provides:
“Everyone whose rights and freedoms as set forth in [the]
Convention are violated shall have an effective remedy before a national
authority notwithstanding that the violation has been committed by persons acting
in an official capacity.”
The Court observes that this complaint concerns
the same issues as those examined above under the procedural limb of Article 3
of the Convention (see paragraphs 53-60 above) and should accordingly be declared admissible. However, having regard to its
conclusion above as regards Article 3, the Court considers it unnecessary to
examine those issues separately under Article 13.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly, the applicant complained under
Article 6 of the Convention that the criminal proceedings against him had
been unfair, and that the judgment of 16 June 2005 had not been enforced.
He complained under Article 34 of the Convention about the arrest and
detention of his representative and under Article 3 of Protocol No. 7
about the authorities’ refusal to have him examined both mentally and
physically.
However, having regard to all the material in
its possession, and in so far as these complaints fall within its competence,
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 Articles 35 § 3 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.”
A. Damage
The applicant claimed 70,000 euros (EUR) in respect
of pecuniary and non-pecuniary damage.
The Government considered the applicant’s claims
excessive and unreasonable. They suggested, in the alternative, 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. However, the applicant was a victim of police brutality and
the ensuing investigation of his allegations was ineffective. In these circumstances,
the Court considers that the applicant’s suffering and anguish cannot be
compensated for by the mere finding of a violation. Making its assessment on an
equitable basis, the Court awards the applicant EUR 15,000 in respect of
non-pecuniary damage.
B. Costs and expenses
The applicant did not claim costs and expenses.
Accordingly, there is no call to make an award under this head.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Joins to the
merits the Government’s objection concerning the victim status of
the applicant and dismisses it;
2. Declares the complaints under
Article 3 of the Convention concerning the alleged ill-treatment of the
applicant in custody and the ineffectiveness of the ensuing investigation and
under Article 13 of the Convention about the lack of an effective remedy
in respect of the alleged violations admissible and the remainder of the application
inadmissible;
3. Holds that there has been a violation of
Article 3 of the Convention under its substantive limb;
4. Holds that there has been a violation of
Article 3 of the Convention under its procedural limb;
5. Holds that there is no need to examine the
complaint under Article 13 of the Convention;
6. Holds
(a) that the respondent State is to pay the
applicant, within three months from the date on which the judgment becomes
final in accordance with Article 44 § 2 of the Convention, EUR
15,000 (fifteen thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage, to be converted into Russian roubles at the
rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amount at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
7. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 30 October
2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
