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FIRST
SECTION
CASE OF NITSOV v. RUSSIA
(Application
no. 35389/04)
JUDGMENT
STRASBOURG
3 May 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 Nitsov 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,
Mirjana Lazarova Trajkovska,
Julia
Laffranque, judges,
and Søren Nielsen,
Section Registrar,
Having
deliberated in private on 10 April 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 35389/04) 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 Valentin Mikhaylovich
Nitsov (“the applicant”), on 19 July 2004.
- The
applicant, who had been granted legal aid, was represented by
Ms V. Ilyukhina, a lawyer from the Centre of Assistance to
International Protection situated in Moscow. The Russian Government
(“the Government”) were represented by Mr G. Matyushkin,
the 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 and that there had been no effective investigation into the
matter. He also complained that he had been deprived of any effective
remedy in respect of those violations. Lastly, he complained of
various irregularities in the criminal proceedings against him. The
applicant relied on Articles 3, 6 and 7 of the Convention.
- On
5 March 2010 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
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1964 and lives in Goryunok, Kirov Region.
A. Alleged ill-treatment of the applicant
- On
26 August 2003 the applicant was arrested on suspicion of attempted
murder and delivered to the Organised Crime Control Division of the
Kirov Regional Department of the Interior (“the Division”)
where, in his submission, he voluntarily confessed to the imputed
offence. According to the applicant, despite his confession he was
beaten up and tortured by police officers for several hours. He found
out from one of the officers that the victim was their colleague, an
officer of the same Division.
- On the same date at around 5.30 p.m. the applicant was
transferred to a temporary holding facility of the Kirov Regional
Department of the Interior (“the IVS”). According to a
letter from the acting head of the Kirov Regional Department of the
Interior dated 25 May 2010, no injuries had been observed on the
applicant upon his arrival at the IVS, as followed from an extract of
the IVS register of medical examinations of detainees (a copy of the
extract was enclosed). The letter also stated that during his
detention in the IVS the applicant had made no complaints concerning
his health.
- In
the applicant’s submission, upon his transfer to the IVS the
same police officers tortured him again.
- On 28 August 2003 at around 9.15 a.m. the applicant was
transferred to the Kirov IZ-43/1 remand centre, where he underwent a
medical examination which attested to the presence of a large
haematoma on the inside of his left thigh and two bruises on the left
side of his forehead. The applicant was furnished with a certificate
reflecting the results of the examination. He explained that he had
sustained his injuries as a result of the beatings by the police;
this information was then forwarded to the prosecutor’s office
of the Pervomayskiy District, Kirov (“the district prosecutor’s
office”) for examination.
- It
appears that upon receipt of the aforementioned information, an
inquiry was opened into the applicant’s allegations, and in a
decision of 29 August 2003 the investigator in charge ordered a
medical forensic examination of the applicant.
- On 2 September 2003 the applicant underwent a medical
forensic examination. During that examination he submitted that he
had been beaten by police officers on 26 August 2003 with the result
that for a short period he had lost consciousness. He complained of
headache and chest pain. The examination identified three abrasions
on his face, which had been inflicted approximately ten to fifteen
days before, and bruises on the applicant’s left forearm and
thighs, measuring from 3 x 2 cm to 10 x 18 cm, as well as an abrasion
on the right wrist joint, which had been inflicted approximately six
to eight days before. The relevant expert report also stated that
those injuries had been inflicted by hard blunt object(s), and that
they had not caused any harm to the applicant’s health.
- On 11 September 2003 the district prosecutor’s
office took a decision to dispense with criminal proceedings in
connection with the applicant’s allegations of ill-treatment,
owing to the absence of evidence of a crime. The decision confirmed
that on 28 August 2003 the applicant had been delivered to the
IZ-43/1 remand centre with bodily injuries. He had explained that he
had been beaten by police officers in the Division for Organised
Crime Control of the Kirov Region Department of the Interior on 26
August 2003. The decision further referred to statements by police
officers F. and Ye. and those of the investigator in charge, Zh., all
of them having been interviewed during the inquiry into the
applicant’s allegations. In particular, officer F. had stated
that he had delivered the applicant to the premises of the Division
where the latter had undergone a body search, had written a voluntary
confession and had given certain explanations. Officer Ye. stated
that he, along with officer F., had interviewed the applicant on the
date in question. Both officers denied beating the applicant or
applying any other unlawful methods of investigation. Investigator
Zh. stated that he had interviewed the applicant on 26 August 2003,
that the applicant had not complained about any violence on the part
of the police officers, and that there had been no visible injuries
on him.
- The decision further relied on a medical record made
in the IVS, according to which no injuries were identified on the
applicant when he was delivered to that facility. It was also stated
that on 26 August 2003 investigative actions in respect of the
applicant had been carried out from 9 a.m. until 12.10 p.m.,
that is before his transfer to the temporary holding facility. The
decision thus concluded that no evidence had been obtained during the
inquiry to confirm that the injuries to the applicant identified upon
his arrival in the IZ-43/1 remand centre had been inflicted on him as
a result of unlawful actions on the part of the police officers.
- The
applicant received the decision of 11 September 2003 on 17 September
2003 and challenged it with the prosecutor’s office of the
Kirov Region.
- On
24 October 2003 the criminal case against the applicant was sent to a
court for trial.
- On 18 December 2003 a supervising prosecutor set aside
the decision of 11 September 2003, stating that it was unfounded, as
it had been established that the applicant had had injuries at the
time of his transfer to the IZ-43/1 remand centre. The prosecutor’s
office instructed the investigator in charge to establish the
circumstances in which those injuries had been sustained by the
applicant.
- In a decision of 1 March 2004 the district
prosecutor’s office again refused to institute criminal
proceedings in connection with the applicant’s allegations,
owing to the absence of any evidence that a criminal offence had been
committed. The decision was very similar to that of 11 September
2003. It gave a more detailed description of the injuries established
on the applicant upon his transfer to the IZ-43/1 remand centre and
contained his own submissions. It further relied on statements from
police officers F. and Ye. and those of investigator Zh., all of them
taken almost word for word from the decision of 11 September 2003.
The decision then stated that investigative actions in the
applicant’s respect had been carried out from 9 a.m. until
12.10 p.m., that is before his transfer to the temporary holding
facility, and that, according to a medical record made in the IVS,
the applicant had not made any complaints after his transfer there.
It therefore concluded that it was impossible to establish in what
circumstances the applicant had received bodily injuries and that
there was no evidence that the police officers had applied unlawful
violence to the applicant.
- The
decision also stated that in accordance with Articles 124 and 125
of the Russian Code of Criminal Procedure it could be challenged
before a higher prosecutor or appealed against in court. The
applicant obtained a copy of that decision on 17 March 2004. It does
not appear that he attempted to lodge any appeal against the
decision.
B. The applicant’s conviction
- On
4 December 2003 the Oktyabrskiy District Court of Kirov convicted the
applicant of unlawful possession of firearms and attempted murder and
sentenced him to ten years’ imprisonment.
- At
the trial the applicant argued that he had acted in a state of
powerful emotional distress and also that he had shot at his victim
with no intention of killing him. The court critically assessed and
rejected these statements as they contradicted the oral evidence
given by the victim and two other witnesses. The court also relied on
various expert reports, including that on the results of the
applicant’s forensic psychiatric examination, which confirmed
that during the incident the applicant had been fully in control of
his actions.
- In
his appeal against the first-instance judgment the applicant
complained, inter alia, that he had been beaten by police
following his arrest.
- On
13 January 2004 the Kirov Regional Court upheld the applicant’s
conviction on appeal, reducing the sentence to nine years and six
months’ imprisonment. As regards the applicant’s
allegations of ill-treatment, the court stated that those were
unfounded, as by a decision of 11 September 2003 the district
prosecutor’s office had refused to institute criminal
proceedings in this connection in the absence of evidence of a crime.
- By
a decision of 1 November 2004 the Verkhnekamskiy District Court of
the Kirov Region further reduced the applicant’s sentence to
eight years’ imprisonment in view of recent changes in the
criminal law.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The Russian Code of Criminal Procedure of 2002 (“the
Code”) in its Article 125 (court examination of complaints)
provides that the decision of an investigator or prosecutor to
dispense with or terminate criminal proceedings, and other decisions
and acts or omissions which are liable to infringe the constitutional
rights and freedoms of the parties to criminal proceedings or to
impede citizens’ access to justice, may be appealed against to
a district court, which is empowered to examine the lawfulness and
grounds of the impugned decisions.
- Article
144 § 1 (examining information on criminal offences) of the Code
provides that an inquirer, inquiring body, investigator or
investigating body have an obligation to check information on any
committed or planned criminal offence and, acting within their
competence, to take a decision in this respect. During such a check,
the inquirer, inquiring body, investigator or investigating body is
entitled to carry out documentary checks and inspections, to study
the relevant documents and objects and any human remains and to
involve specialists in those checks.
- Article
145 § 1 (decisions taken based on the results of the examination
of information on criminal offences) of the Code states that on the
basis of the results of the examination of information on criminal
offences, the inquirer, inquiring body, investigator or investigating
body shall decide whether to institute criminal proceedings or
whether to send information about a criminal offence for
investigation by other competent authorities.
- It is clear from various provisions of the Code that a
number of investigative measures, such as confrontations, can only be
carried out in the context of pending criminal proceedings.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE
CONVENTION
- The
applicant complained that he had been ill-treated by the police and
there had been no adequate investigation into the matter, therefore
he had been deprived of any effective remedies and, in particular, he
would have been unable to obtain compensation for the damage he had
sustained as a result of that treatment. The complaints fall to be
examined under Articles 3 and 13 of the Convention, which read as
follows:
Article 3
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
Article 13
“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.”
A. Submissions by the parties
1. The applicant
- The
applicant insisted that he had been subjected to treatment in breach
of Article 3 of the Convention. He maintained his version of events
and argued that on 26 August 2003 he was subjected to inhuman and
degrading treatment by police officers who were taking revenge on him
because he had shot their colleague. He also submitted that neither
the authorities at the domestic level nor the Government in the
proceedings before the Court had provided any plausible explanations
as to the origin of his injuries.
- He
further argued that the inquiry into his allegations of ill-treatment
had not met the standards of adequate and effective investigation
required by Article 3 of the Convention. He stated that in his
complaints to a prosecutor’s office he had described in detail
the circumstances of the ill-treatment to which he had been
subjected, and requested that a number of witnesses who had seen
injuries on him be interviewed. The investigating authorities,
however, on two occasions refused to institute criminal proceedings
into his allegations.
- The
applicant contended that the inquiry into his allegations had been
formalistic and incomplete. A medical examination of 2 September 2003
had been superficial, and had failed to establish or duly assess all
the injuries he had sustained. Also, the authorities had only
interviewed the police officers and investigator in charge and had
not questioned any other witnesses, such as those who had been
detained with him in the IVS at the relevant time. The applicant also
argued that since no criminal proceedings had been instituted in
respect of his complaints, he had not been granted victim status and
had had no opportunity to avail himself of any procedural rights;
also a number of important investigative actions, such as
identification parades, confrontations and so on, which could only
have taken place in the context of pending criminal proceedings (see
paragraph 27 above), had never been taken.
- The
applicant also stated that he had raised his arguments of
ill-treatment before the trial and appellate court during the
examination of the criminal case against him, but those courts had
failed to address the matter; they had merely referred to the
decision of 11 September 2003 to dispense with criminal proceedings
concerning the applicant’s complaint, and had stated that it
had not been established that the applicant had been subjected to
ill-treatment as he had alleged had happened.
- Lastly,
the applicant argued that in the absence of any effective
investigation into his allegations his claim for damages in the civil
courts would have had no prospects of success. He therefore claimed
that he had been deprived of any effective remedies, in breach of
Article 13 taken in conjunction with Article 3 of the Convention.
2. The Government
- The
Government argued that the applicant had had effective domestic
remedies in respect of his complaint of ill-treatment under Article 3
of the Convention, as required by its Article 13, but he had not
availed himself of those remedies. In particular, they contended that
he could have challenged the decisions of 11 September 2003 and 1
March 2004 before a court, in accordance with Article 125 of the
Russian Code of Criminal Procedure, but he had never used that
remedy. They also argued that the applicant would be able to receive
compensation for pecuniary and non-pecuniary damage in criminal or
civil proceedings if the guilt of those responsible for inhuman
treatment in his respect was established by a final and binding court
decision.
- The
Government further acknowledged that injuries had been observed on
the applicant upon his transfer to the IZ-43/1 remand centre on 28
August 2003 in respect of which he had explained that he had been
beaten by the police two days before. According to the Government,
during a later inquiry it had been established that the applicant had
been arrested on 26 August 2003 and delivered to the Division for
Organised Crime Control of the Kirov Region Department of the
Interior of the Kirov Region, where he had been searched and
interviewed and had confessed. The applicant had then been placed to
the IVS of the Kirov Region Department of the Interior, where,
according to an extract from the medical register, no injuries had
been identified on him, nor had he made any complaint concerning his
health. According to the Government, on the basis of that information
the investigator in charge of the inquiry into the applicant’s
allegations had not been able to establish the circumstances in which
the applicant had sustained the injuries which had been observed in
the IZ-43/1 remand centre.
- The
Government also pointed out that the report of the medical forensic
examination, which the applicant had undergone on 2 September 2003,
had attested to the presence of various injuries on the applicant but
stated that those injuries had not caused any damage to the
applicant’s health (see paragraph 11
above). They seem to have argued, with reference to this latter
finding, that the treatment alleged by the applicant had not attained
the minimum level of severity to bring Article 3 into play.
- The
Government further submitted that an inquiry into the applicant’s
allegations of ill-treatment had been commenced on the day on which
the relevant information had been received by the authorities. They
pointed out that in the context of that inquiry a medical forensic
examination of the applicant had been carried out without undue
delay. Also, during that inquiry the authorities had interviewed
police officers who had been involved in the applicant’s
arrest, and had examined the medical register of the IVS of the
Department of the Interior of the Kirov Region. The Government also
argued that the inquiry had been carried out by a body independent of
the officials against whom the applicant’s allegations were
directed. They stated that no evidence had been obtained as a result
of the inquiry to enable the authorities to institute criminal
proceedings in connection with the applicant’s allegations. In
their opinion, the domestic inquiry met the requirements of Article 3
of the Convention.
- Overall,
the Government insisted that there had been no violation of Article 3
of the Convention, either in its substantive or procedural limb, in
the present case.
B. The Court’s assessment
1. Admissibility
- The
Government pointed out that the applicant had not appealed to a
court, under Article 125 of the Russian Code of Criminal Procedure
(see paragraph 24 above), against procedural
decisions by which the district prosecutor’s office had refused
to institute criminal proceedings into his allegations of
ill-treatment.
- In this respect, the Court reiterates that, in
principle, an appeal against a decision to dispense with or
discontinue criminal proceedings may offer a substantial safeguard
against the arbitrary exercise of power by the investigating
authority, given a court’s power to annul such a decision and
indicate the defects to be addressed (see Trubnikov v. Russia
(dec.), no. 49790/99, 14 October 2003). Therefore, in the
ordinary course of events such an appeal might be regarded as a
possible remedy where the prosecution has decided not to investigate
the claims. The Court, however, has doubts that this remedy would
have been effective in the present case. It observes that, following
the applicant’s complaint about beatings by the police, the
district prosecutor’s office carried out a certain inquiry
which resulted in a decision of 11 September 2003 to dispense with
criminal proceedings owing to the absence of evidence that any crime
had been committed (see paragraph 12 above).
This latter decision was then quashed by a supervising prosecutor,
who instructed the investigating authorities to carry out an
additional inquiry (see paragraph 16 above).
That inquiry resulted in the decision of 1 March 2004 not to
institute criminal proceedings, which was identical to that of 11
September 2003 (see paragraph 17 above).
- In
these circumstances, the Court is not convinced that an appeal to a
court, which could only have had the same effect, that is one more
reopening of the inquiry, would have offered the applicant any
redress. Furthermore the Government have not provided any arguments
which could lead to any other result. The Court considers, therefore,
that such an appeal in the particular circumstances of the present
case would be devoid of any purpose. The Court finds that the
applicant was not obliged to pursue that remedy and holds that the
Government’s objection should therefore be dismissed (see
Khatsiyeva and Others v. Russia, no. 5108/02, § 151,
17 January 2008, or Esmukhambetov and Others v. Russia,
no. 23445/03, § 128, 29 March 2011).
- The
Court further notes that this part of the application is not
manifestly ill-founded within the meaning of Article 35 § 3 (a)
of the Convention. It also notes that it is not inadmissible on any
other grounds. It must therefore be declared admissible.
2. Merits
(a) Alleged ill-treatment of the applicant
- The
Court has observed on many occasions that Article 3 of the
Convention enshrines one of the fundamental values of democratic
societies and as such prohibits in absolute terms torture or inhuman
or degrading treatment or punishment (see, for example, Aksoy v.
Turkey, 18 December 1996, § 62, Reports of Judgments and
Decisions 1996-VI, and Aydın v. Turkey, 25
September 1997, § 81, Reports 1997 VI). The Court
further indicates, as it has held on many occasions, that the
authorities have an obligation to protect the physical integrity of
persons in detention. Where an individual is taken into police
custody in good health but is found to be injured at the time of
release, it is incumbent on the State to provide a plausible
explanation of how those injuries were caused. Otherwise, torture or
ill-treatment may be presumed in favour of the claimant and an issue
may arise under Article 3 of the Convention (see Tomasi v. France,
27 August 1992, §§ 108-11, Series A no. 241-A, and Selmouni
v. France [GC], no. 25803/94, § 87, ECHR 1999 V).
- In
assessing evidence, the Court has generally applied the standard of
proof “beyond reasonable doubt” (see Ireland v. the
United Kingdom, 18 January 1978, § 161, Series A no.
25). Such proof may follow from the coexistence of sufficiently
strong, clear and concordant inferences or of similar unrebutted
presumptions of fact. Where the events in issue lie wholly or in
large part within the exclusive knowledge of the authorities, as in
the case of persons within their control in custody, strong
presumptions of fact will arise in respect of injuries occurring
during such detention. Indeed, the burden of proof may be regarded as
resting on the authorities to provide a satisfactory and convincing
explanation (see Ribitsch v. Austria, 4 December 1995, §
34, Series A no. 336, and Salman v. Turkey [GC],
no. 21986/93, § 100, ECHR 2000-VII).
- The
Court further reiterates that, while it is sensitive to the
subsidiary nature of its role and cautious about taking on the role
of a firstinstance tribunal of fact, it is nevertheless not
bound by the findings of domestic courts and may depart from them
where this is rendered unavoidable by the circumstances of a
particular case (see, for example, Matyar v. Turkey, no.
23423/94, § 108, 21 February 2002, and, by contrast, Edwards
v. the United Kingdom, 16 December 1992, § 34, Series A
no. 247 B, and Vidal v. Belgium, 22 April 1992, §§
33-34, Series A no. 235 B).
- Turning to the present case, the Court observes that
the Government stated that on the day of the applicant’s
arrest, 26 August 2003, there were no injuries on the applicant,
according to the medical records of a temporary holding facility were
the applicant had been placed (see paragraph 7
above). At the same time, they acknowledged that two days after the
applicant’s arrest, namely on 28 August 2003, it was
established that he had injuries (see paragraph 9
above). Their presence was, moreover, attested by a report on a
forensic medical examination of the applicant carried out on
2 September 2003, which also confirmed that they could have been
inflicted within the period indicated by the applicant (see paragraph
11 above). It falls therefore to the Government
to provide a plausible explanation as to the origin of those
injuries.
- In this connection, the Court notes first of all that
the applicant’s allegations of ill-treatment were investigated
in the course of the internal inquiry which resulted in two
decisions, 11 September 2003 and 1 March 2004, not to institute
criminal proceedings in the absence of any evidence of a crime (see
paragraphs 12 and 17
above). While acknowledging the presence of injuries on the
applicant, the authorities rejected as unfounded his allegations that
they had been inflicted as a result of ill-treatment by the police.
The decisions mainly relied on the statements of the police officers
against whom the applicant’s allegations were directed and
those of the investigator in charge in the criminal case against him.
They also referred to the medical records of the temporary holding
facility where the applicant had been held from 26 to 28 August 2003,
which apparently stated that there were no injuries on the applicant
at the time of his transfer to that facility on 26 August 2003 (see
paragraph 13 above). The authorities made no
attempt to question an official who had examined the applicant upon
his transfer to the temporary holding facility, or an official who
had examined the applicant upon his transfer to the IZ-43/01 remand
centre, when injuries had been found on him. Moreover, it does not
appear that any attempt was made to explain the discrepancy in the
medical records drawn up by the former and the latter and, in
particular, to investigate whether the applicant had been subjected
to any ill-treatment after his transfer to the temporary holding
facility, as he alleged had happened. In such circumstances the Court
cannot accept the conclusion drawn by the authorities at the domestic
level, that the applicant’s allegations were groundless.
- The
Court further notes that the Government advanced no other explanation
in the above connection than the domestic authorities’
inability to establish in course of an internal inquiry into the
applicant’s allegations of ill-treatment the circumstances in
which the applicant had sustained those injuries. In the light of its
findings in paragraph 46 above, the Court cannot
accept that explanation as satisfactory.
- On the basis of the materials before it, the Court
finds that neither the authorities at the domestic level nor the
Government in the proceedings before the Court advanced any plausible
explanation as to the origin of the applicant’s injuries (see,
by contrast, Klaas v. Germany, 22 September 1993, §§
29-31, Series A no. 269). It therefore concludes that the Government
have not satisfactorily demonstrated that those injuries were caused
otherwise than – entirely, mainly or partly – by the
treatment the applicant underwent while under the control of the
police (see Ribitsch, cited above, § 34).
- In
the light of the foregoing considerations, the Court accepts the
applicant’s account of events in so far as he alleged that he
had been beaten up by the police after his arrest at some point
between 26 and 28 August 2003.
- As
to the seriousness of the acts of ill-treatment complained of, the
Court reiterates that in order to determine how a particular form of
ill-treatment should be qualified it must have regard to the
distinctions embodied in Article 3 (see Aksoy, cited above, §
64; Aydın, cited above, §§ 83, 84 and 86;
Selmouni, cited above, § 105; Dikme v. Turkey,
no. 20869/92, §§ 94-96, ECHR 2000-VIII; and, among
more recent authorities, Batı and Others v. Turkey, nos.
33097/96 and 57834/00, § 116, ECHR 2004 IV (extracts), as
well as Menesheva v. Russia, no. 59261/00, § 55,
ECHR 2006 III).
- Furthermore,
the Court reiterates its well-established case-law that 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 rights set
forth in Article 3 of the Convention (see Tomasi, § 115,
and Ribitsch, §§ 38-40, both cited above).
- Turning
to the circumstances of the present case, the Court takes into
account the information contained in the relevant documents and the
applicant’s own description of events, and finds that the
beatings inflicted on the applicant caused him physical suffering. It
cannot accept the Government’s argument that the treatment in
question had not attained the minimum level of severity, as,
according to the report of 2 September 2003 the injuries sustained by
the applicant had not caused any damage to his health. In this
respect, the Court observes that the said report had attested to the
presence of various injuries on the applicant, including bruises
measuring up to 10 x 18 cm, which had been inflicted by hard blunt
object(s) (see paragraph 11 above). The Court
has accepted above the applicant’s version of events, as
regards his allegations that he had been beaten by the police. It
further has no doubt that beatings resulting in bruises, particularly
bruises of such a large size as those established on the applicant,
constitute a treatment attaining the minimum level of severity for
the purpose of Article 3 of the Convention.
- Given
these considerations and in view of the Convention caselaw in
this respect and, in particular, the criteria of severity and the
intention behind the ill-treatment, the Court concludes that the
accumulation of acts of physical violence inflicted on the applicant,
as established by the Court, amounted to inhuman treatment within the
meaning of Article 3 of the Convention.
- Accordingly,
there has been a breach of Article 3 of the Convention on that
account.
(b) Alleged ineffectiveness of the
investigation
- The
Court reiterates that where an individual makes a credible assertion
that he has suffered treatment infringing Article 3 at the hands of
the police or other similar agents of the State, that provision, read
in conjunction with the State’s general duty under Article 1 of
the Convention to “secure to everyone within their jurisdiction
the rights and freedoms defined in ... [the] Convention”,
requires by implication that there should be an effective official
investigation. As with an investigation under Article 2, such an
investigation should be capable of leading to the identification and
punishment of those responsible. Otherwise, the general legal
prohibition of torture and inhuman and degrading treatment and
punishment would, despite its fundamental importance, be ineffective
in practice and it would be possible in some cases for agents of the
State to abuse the rights of those within their control with virtual
impunity (see Jasar v. the former Yugoslav Republic of Macedonia,
no. 69908/01, § 55, 15 February 2007; Matko v. Slovenia,
no. 43393/98, § 84, 2 November 2006; Assenov and Others
v. Bulgaria, 28 October 1998, § 102, Reports
1998 VIII; and Labita v. Italy [GC], no. 26772/95, §
131, ECHR 2000-IV).
- The
minimum standards of “effectiveness” defined by the
Court’s case-law also require that the investigation must be
independent, impartial and subject to public scrutiny, and that the
competent authorities must act with exemplary diligence and
promptness (see Isayeva and Others v. Russia, nos.
57947/00, 57948/00 and 57949/00, §§ 208-13, 24 February
2005, and Menesheva, cited above, § 67).
- The
Court observes, as it has already noted in paragraph 47
above, that the applicant’s allegations of ill-treatment were
examined during the internal inquiry which, it appears, was started
after a medical examination he underwent in the IZ-43/1 remand centre
revealed the presence of injuries on him.
- The
existence of injuries on the applicant, as confirmed by a forensic
medical examination of 2 September 2003 (see paragraph 11
above), was never called into question. Nevertheless, the
inquiry into the circumstances in which those injuries could have
been sustained was, in essence, limited to interviewing two police
officers against whom the applicant had made his allegations and the
investigator in charge who had investigated the criminal case against
the applicant. It comes as no surprise that these officials denied
the applicant’s allegations of ill-treatment. Moreover, it does
not appear that, after the inquiry was reopened following a
supervising prosecutor’s instruction to that effect in a
decision of 18 December 2003, the aforementioned officials were
interviewed again. Indeed the decision of 1 March 2004, which
was taken as a result of that additional inquiry, appear merely to
take those officials’ statements word for word from the similar
decision of 11 September 2003 (see paragraph 17
above).
- It does not appear that the authorities made any
attempts to investigate the applicant’s relevant complaints any
further or to check the credibility of the aforementioned officers’
statements by, for instance, organising confrontations between them
and the applicant. The Court accepts the applicant’s argument
that a number of important procedural steps, such as identifications
or confrontations, simply could not have been taken by the
authorities, as criminal proceedings which would have enabled the
authorities to take those actions were never instituted (see
paragraph 27 above). For the same reason, it does not appear that, as
alleged by the applicant, he could have in any meaningful way
participated in the inquiry in question, or at the very least have
had access to its materials. The Court notes in this respect that it
falls to the State to have recourse to a procedure which would enable
it to take all measures necessary for it to comply with its positive
obligation to investigate imposed by Article 3 of the Convention.
- The
Court furthermore notes that the authorities never interviewed
important witnesses such as an official of the temporary holding
facility who had examined the applicant upon his delivery there and
had found no injuries on him, and a medical official who had
established injuries on the applicant upon his transfer to the
IZ-43/1 remand centre. Also, as the Court has already noted in
paragraph 47 above, there is no evidence that
any attempts were made to resolve the conflict in the medical records
drawn up by the former and the latter.
- The Court also accepts the applicant’s argument
that the authorities had not interviewed any of the applicant’s
cellmates, who could in principle have provided information relevant
to the establishment of the circumstances in which the applicant had
sustained his injuries.
- Overall,
it does not appear that the investigating authorities took meaningful
steps to establish the circumstances in which the applicant had
sustained his injuries, despite a clear indication to that effect in
a supervising prosecutor’s decision of 18 December 2003 (see
paragraph 16 above)
- The
Court thus considers that the inquiry into his allegations of
ill-treatment had been superficial and formalistic. The
aforementioned failings and shortcomings are sufficient to enable the
Court to conclude that the inquiry into the applicant’s
allegations of ill-treatment was inadequate and ineffective.
- Accordingly,
there has been a violation of Article 3 of the Convention on that
account.
(c) Alleged absence of effective domestic
remedies
- The
Court observes that, when alleging the lack of domestic remedies
under Article 13, the applicant complained, in essence, that in the
absence of any effective investigation into his allegations his claim
for damages in the civil courts would have had no prospects of
success. It considers that such a situation may potentially be
problematic, regard being had to the Government’s argument that
the applicant could have obtained compensation for pecuniary and
non-pecuniary damage for the inhuman treatment allegedly inflicted on
him only if those responsible were convicted of that criminal offence
by a final and binding court decision. The Court also reiterates that
it has already found a violation of Article 13 taken in conjunction
with Article 3 of the Convention in a similar situation, where by
operation of provisions of the domestic law, the applicant was barred
from suing officials, who ill-treated him, on the ground that
criminal proceedings against them had been discontinued owing to the
absence of evidence that any crime had been committed (see Chember
v. Russia, no. 7188/03, § 72, ECHR 2008).
- However,
unlike the applicant in the case quoted above, the applicant in the
present case never attempted to institute any proceedings for
compensation. Against this background, and having regard to its
finding of a violation of Article 3 in its procedural limb, the Court
does not consider it necessary to examine the applicant’s
complaint under Article 13, taken in conjunction with Article 3 of
the Convention, as raising no separate issue in the circumstances of
the present case.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant relied on Articles 6 and 7 of the Convention, complaining
that the domestic courts had assessed the adduced evidence
incorrectly, and in particular that they had not given due
consideration to his argument that he had committed the imputed
offence in a state of powerful emotional distress, or to his
voluntary confession.
- Having
regard to the materials in its possession, the Court finds that this
part of the application does not disclose any appearance of a
violation of the Convention provisions. It follows that this part of
the application is manifestly ill-founded and should be rejected in
accordance with Article 35 §§ 3 (a) and 4 of the
Convention.
III. 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 50,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government contested that amount as excessive and argued that the
applicant had not presented any documentary evidence confirming that
the alleged ill-treatment had had any negative consequences on his
health.
- The
Court observes that it has found a violation of Article 3 of the
Convention on account of the treatment to which the applicant was
subjected while in police custody and on account of the lack of an
effective investigation into the matter. The applicant must have
suffered anguish and distress on account of those infringements of
his rights. Having regard to these considerations and judging on an
equitable basis, the Court finds it reasonable to award the applicant
EUR 15,000 under this head, plus any tax that may be chargeable on
this amount.
B. Costs and expenses
- The
applicant also claimed EUR 1,200 for costs and
expenses incurred before the Court.
- The
Government stated that, according to the Court’s case-law, an
applicant is entitled to reimbursement of their costs and expenses
only in so far as it has been shown that they were actually incurred
and are reasonable as to quantum. They insisted that the applicant’s
claim in that respect should be rejected.
- The
Court reiterates that an applicant is entitled to the reimbursement
of costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and are reasonable as to
quantum. In the present case, the Court notes that the applicant
issued a power of attorney in respect of Ms V. Ilyukhina, who then
represented him throughout the proceedings before the Court. It is
therefore satisfied that the expenses in question were actually
incurred. It further considers their amount to be reasonable. The
Court therefore awards EUR 1,200, the full amount claimed, under this
head, less EUR 850 already received by way of legal aid from the
Council of Europe, plus any tax that may be chargeable to the
applicant on this amount.
C. Default interest
- The
Court considers it appropriate that the default interest rate should
be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints under Articles 3 and 13,
taken in conjunction with Article 3 of the Convention, admissible and
the remainder of the application inadmissible;
- Holds that there has been a violation of Article
3 of the Convention on account of beatings inflicted on the applicant
by the police after his arrest;
- 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;
- Holds that there is no need to examine
separately the applicant’s complaint under Article 13, in
conjunction with Article 3 of the Convention;
- 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
on the date of settlement:
(i) EUR
15,000 (fifteen thousand euros), plus any tax that may be chargeable,
in respect of non-pecuniary damage;
(ii) EUR
350 (three hundred and fifty 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 amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 3 May 2012, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina Vajić
Registrar President
