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FIRST
SECTION
CASE OF SALIKHOV v. RUSSIA
(Application
no. 23880/05)
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 Salikhov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Mirjana Lazarova Trajkovska,
Julia
Laffranque,
Linos-Alexandre Sicilianos,
Erik
Møse, 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. 23880/05)
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 Valery Mindyvaleyevich Salikhov (“the
applicant”), on 1 June 2005.
- The
applicant, who had been granted legal aid, was represented by Ms O.
Preobrazhenskaya and Ms E. Leontyeva, lawyers practising 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.
- On
20 May 2009 the President of the
First Section decided to give notice of the application to the
Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article
29 § 1 of the Convention).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1965 and lived in
Novosibirsk before his arrest.
- The
following facts are based on the documents produced by the parties
and on the applicant’s submissions in so far as they have not
been disputed by the Government.
A. The incident of 22-23 June 2004 and the related
proceedings
- At
8 p.m. on 22 June 2004 the applicant was arrested in the Chelyabinsk
Region on suspicion of rape and placed in the interview room of the
Uysk police station. At 10 p.m. Mr Zh., an investigator with the Uysk
district prosecutor’s office, drafted an arrest record.
- At
about midnight on that day the applicant was taken out of the room
into the corridor and told to hand over his underwear for examination
by an expert. He replied that he was prepared to do that on condition
that another pair of underwear was provided to him by the police or
by his relatives.
- Thirty
minutes later Mr M., the head of the criminal investigation
department, the police officer Mr F. and other police officers
entered the interview room in which the applicant was locked, and
started beating him with rubber truncheons. They handcuffed him and
dragged him out of the room into the corridor.
- The
applicant was brought to the office of Mr M. where the following
persons were also present: the investigator Mr Zh., Mr F. and two or
three other officers, a forensic police expert, and two attesting
witnesses, Mr L. and Mr R., both residents of Uyskoye village.
- The
applicant was thrown on to the table face down and beaten on the
back. His head struck the central unit of a computer. The officers
forcibly removed his trainers, tracksuit bottoms and underwear, took
the underwear away and told him to get dressed. The applicant refused
to get dressed, because he was handcuffed and his tracksuit bottoms
were torn.
- The
officers M. and F. returned him to the interview room and threw him
on the table on his stomach. M. hit him on the back with a rubber
truncheon, removed the handcuffs and then went out and locked the
door.
- F.
returned half an hour later, put handcuffs on the applicant and took
him again to M.’s office where other officers were also
present. The applicant was only wearing a T-shirt and socks.
- The
forensic expert attempted to take a hair sample from the applicant’s
groin using a comb. He was unsuccessful, and M. cut some hair with
scissors.
- The
applicant was then laid on the table facing the desk and M. started
clipping his fingernails. In the process the applicant’s
fingers began bleeding.
- Once
these procedures had been completed, the applicant was taken back to
the interview room, which contained a table and two chairs. The
handcuffs were removed. He was still wearing only a T-shirt and
socks.
- The
applicant remained there overnight, until noon on 23 June 2004. At
noon he was transferred to a detention cell and given some clothing
which his relatives had brought for him.
- On
24 June 2004 the applicant was taken to a doctor for an examination.
While there he asked the doctor to record his injuries. The doctor
refused, saying he had had no instructions in that respect.
- On
the same day the applicant was brought before a judge with a view to
deciding on the question of detention on remand. During those
proceedings the applicant described his injuries to the judge, who
remanded him in custody but did not otherwise take note of the
applicant’s complaints.
- On
25 June 2004 the applicant complained to the Uysk district prosecutor
about the forceful removal of his underwear, beatings and the cutting
of his fingernails. On 29 June 2004 a deputy prosecutor heard him in
person.
- On
1 July 2004 the deputy prosecutor refused to institute criminal
proceedings on the basis of the statements from officers M. and F.
and investigator Zh. which read as follows:
“It follows from M[.]’s statement that
Salikhov refused to perform procedural acts voluntarily, struggled to
break loose and accidentally struck his head against the computer. He
was not intentionally beaten by anyone. After his fingernails had
been removed and his groin shaven, Salikhov was told to get dressed.
He refused to get dressed. He was taken by the corridor to the
detention wing. He was wearing a T-shirt and socks...
F. explained that... Salikhov had refused to take part
in procedural acts. He was held by the hands while his underwear was
being removed. He broke loose and struck his head against the
computer. He refused to get dressed...
Zh. stated that... Salikhov had struck his head against
the computer when his underwear was being removed. He did not make
any threats against Salikhov. He said that if Salikhov refused to
hand over his underwear voluntarily, it would be taken by force
because it was needed. Salikhov refused to get dressed of his own
will...”
The
decision did not mention the applicant’s version of the events.
- The
applicant contested the refusal in court. On 19 August 2004 the
Uyskiy District Court of the Chelyabinsk Region rejected his
complaint, finding as follows:
“Pursuant to Article 202 § 1 of the Code of
Criminal Procedure, the investigator may obtain samples from the
suspect ... It follows from the statements by Mr Zh[.], Mr F[.] and
[the head of the investigators’ group] Ms Z[.] that they did
not use any unlawful means on Mr Salikhov or made any treats against
him...”
- On
14 January 2005 the Chelyabinsk Regional Court summarily upheld that
decision on appeal.
B. The events of 24 June and 1 July 2004 and the
related proceedings
- At
about 9 p.m. on 24 June 2004 the applicant was taken out of the cell
– where he was detained on remand – into the corridor,
where the investigators Zh. and Z. and a nurse from the Uysk
emergency station were present.
- The
investigators told the applicant that they wanted to take a blood
sample from him. The applicant refused to give blood in the absence
of counsel.
- At
9 a.m. the following morning investigator Zh. visited the applicant
in his cell. Counsel for the applicant was also present. The
investigator showed him a copy of a decision that a blood sample
should be taken for a comparative study, and asked the applicant to
comply. The applicant refused to give blood voluntarily and counsel
maintained that a sample could not be taken against his will.
- Half
an hour later escort officers K. and D. took the applicant out of the
cell into an office where the investigator Zh., the nurse, and two
attesting witnesses, Kh. and I., were waiting for him. The
investigator requested the applicant to give blood. The applicant
refused. The investigator asked the escort officers to hold the
applicant still but they refused, stating that it was beyond their
call of duty. The nurse declined to take blood against the
applicant’s will. Thereafter, the applicant was brought back to
his cell.
- At
9 p.m. on 1 July 2004 the applicant was taken from his cell and into
the corridor. The investigators Zh. and Z., the head of the police
station R. and his deputy Is., officers-on-duty Ye. and A., as well
as the nurse, were waiting there for him. The applicant again refused
to give blood.
- The
investigator ordered him to be handcuffed and the nurse tried to take
blood, but could not get near enough to the applicant. The officers
then threw him on the floor, face down with his hands behind his
back. Ye. sat on his neck, A. on his legs, and R. and Is. held his
hands. The nurse again attempted to use a syringe but, as he kept
jerking his arms, she stopped.
- The
applicant complained to the district prosecutor, the internal
security department of the police and the Ombudsman of the attempted
taking of a blood sample by force. He did not receive any replies.
- On 13 October 2004 he lodged a complaint about a
violation of his constitutional rights and ill-treatment with the
Uyskiy District Court.
- The District Court heard the applicant, the
investigators Zh. and Z., and the officers Is., Ye. and A. and
dismissed the applicant’s complaint on 28 December 2004,
finding as follows:
“Salikhov claimed ... that attempts to take a
blood sample by force and the use of handcuffs had amounted to
torture. Article 21 of the Russian Constitution prohibits the use of
torture. Article 1 of the Convention against Torture defines torture
as any act by which severe pain is inflicted on a person for
obtaining a confession, punishing or intimidating him. The court did
not see any evidence that severe pain had been inflicted on Salikhov
on 24, 25 June or 1 July 2004, this followed from the statements by
the witnesses and Salikhov’s own testimony. The use of
handcuffs was permitted under section 45 of the Pre-Trial Detention
Act. As the witnesses stated in court, Salikhov had been handcuffed
after he had started using obscene language against the nurse and
police officers and jerking his hands, that is, they were used for
putting an end to his unlawful conduct. Thus, the court finds no
violation of Salikhov’s constitutional rights because a blood
sample was not taken, because he was not subjected to torture, and
because the use of handcuffs was lawful.”
- On
5 April 2005 the Chelyabinsk Regional Court upheld that decision on
appeal in a summary fashion.
C. Conditions of detention at the Uysk police station
- Following
his detention on remand, the applicant was placed in remand prison
IZ-74/1. During the investigation of the criminal case against him,
he was, on a number of occasions in the period from 22 June 2004 to
1 April 2005, detained in the detention unit of the Uysk police
station, for a total duration of seventy-five days.
- Cells
were equipped with beds made of sheet metal. No mattresses, blankets,
pillows or bed linen were provided. There were no toilets inside the
cells; detainees were given buckets without covers or handles. Access
to daylight and fresh air was limited. There was no opportunity for
outdoor exercise; the only light bulb was dim. No breakfast or dinner
was served and the midday meal was limited to a slice of bread and a
bowl of soup.
- The
applicant complained to the prosecutor’s office about the
conditions of his detention at the Uysk police station, lack of sleep
and malnutrition. In addition, he repeated his complaint before the
Uysk District Court at the hearing on 9 August 2004.
- On
18 August 2004 the Uysk prosecutor replied to the applicant that
there had been numerous (unspecified) breaches of the legal
requirements relating to the conditions of detention. By letter of 18
October 2004, the prosecutor additionally informed him that on 23
August 2004 he had instructed the head of the Uysk police station to
remedy those breaches and to take disciplinary action against those
responsible.
- By
a letter dated 19 November 2004, the regional police headquarters
informed the applicant that mattresses and bed linen had been
purchased and distributed to all inmates. They also stated that
buckets with covers and handles were available in all cells and that
one hour of outdoor exercise was possible on a daily basis. Food was
purchased from the local consumers’ union for a total amount of
twenty-four Russian roubles (less than one euro) per person per day.
- On
20 September 2005 the deputy Uysk prosecutor issued a formal
requirement to the head of the Chelyabinsk Region police and the
chief officer of Uysk police station to remedy the violations of the
laws relating to pre-trial detention of suspects and defendants. The
prosecutor deputy noted that, in breach of the relevant laws and
regulations, the detainees at the Uysk police station were not
provided with bedding, that the cells were not equipped with toilets
or water taps, that cell no. 2 was overcrowded, that there was no
opportunity for outdoor exercise, and that food was distributed only
once a day on weekdays and not provided at all at weekends.
- On
12 October 2005 the head of the Chelyabinsk Region police reported to
the Uysk district prosecutor that his requirement had been examined
and that the conditions of detention in the Uysk police station had
indeed fallen short of the statutory requirements. The deficiencies
were largely due to insufficient funding from the federal budget.
However, a renovation of the Uysk police station at the expense of
the regional budget was planned for 2006.
- On
26 October 2005 the chief officer of Uysk police station also
acknowledged, in his report to the Uysk district prosecutor, that the
conditions at the Uysk police station were unsatisfactory but
renovation would be carried out in 2006.
D. Alleged ill-treatment on 21 October 2004
- As
indicated above, the applicant spent a total of seventy-five days of
his detention on remand in cells of the Uysk police station. One of
those occasions was on 21 October 2004 when the applicant was brought
to Uysk police station from the remand prison at about 4 p.m. The
applicant was locked in cell no. 1.
- Soon
afterwards police officer Mr P. told the applicant to leave the cell
and follow him. The applicant refused to leave the cell without the
investigator and counsel being present.
- The
chief officer of the police station, Mr R., accompanied by officers
Mr Pr., Mr Ye. and Mr V., entered the cell and ordered his
subordinates to “wrap him up” and take him to the
hospital for a medical check-up. The officers started dragging the
applicant off the bed by the feet, hitting and punching him. Someone
banged his head against the bed. He was handcuffed and taken out into
the corridor. The applicant was shouting and swearing at the
policemen.
- The
applicant wore socks but no shoes. He was dragged into the courtyard,
pulled through the slush and puddles and placed into a prison van.
- The
applicant was brought to the hospital where a nurse put some
questions to him. The applicant spotted investigator Zh. nearby and
requested him to secure the presence of his counsel.
- The
applicant was then taken to the court-house. Counsel M. met him there
and told him that a hearing concerning an extension of his detention
period would now take place. The applicant replied that he would come
to the hearing as he was: barefoot, wet and dirty, with blood from
wounds on his forehead and face.
- The
escorting officers took the applicant into the hearing room. The
applicant told the judge that he was ready to take part in the
hearing, but drew the judge’s attention to his lamentable
appearance. The judge replied that “nothing dramatic had
happened” and opened the hearing. At the close of the hearing
the judge approved an extension of the authorised period of detention
for a further three months.
- The
applicant appealed, complaining in addition about the circumstances
in which he had been brought to the hearing. On 12 November 2004
the Chelyabinsk Regional Court rejected his appeal against the
extension order but did not address the other complaints made.
- Furthermore,
on 25 October 2004 the applicant complained to the District Court
that the hearing record made no mention of his complaint about the
conditions in which he had been transported to the courthouse. On 3
November 2004 a judge of the District Court rejected his application
for the correction of the hearing record, noting that “all
statements, questions and answers had been recorded exactly as they
had been made by the participants to the hearing”.
- On
27 October 2004 the applicant complained to the Uysk prosecutor that
the escorting officers had acted unlawfully.
- On
19 November 2004 the deputy prosecutor of the Uysk district refused
to institute criminal proceedings, finding as follows:
“On 21 October 2004 Salikhov was escorted from
remand prison no. IZ-74/1 to the Uysk police station for an extension
of his authorised detention period. According to the applicable
requirements of criminal law, a medical specialist must examine the
detainee and determine whether he is fit to remain in custody.
Salikhov was invited to follow the escorting officers. He refused and
insisted on seeing his counsel and the head of the police station.
Medical examination is not a procedural act, it does not
require a separate decision by the investigator. It follows that
there was no breach of the criminal procedure in respect of Salikhov.
The actions of the escorting officers in respect of
Salikhov were lawful because he refused to go out of the cell,
behaved aggressively and used obscene language against the policemen.
By decision of 10 November 2004, a criminal case was instituted
against Salikhov for insulting public officials.”
- According to the applicant, he challenged the deputy
prosecutor’s decision before the Uysk District Court but he was
not informed about the outcome of the proceedings. According to the
Government, first the Uysk District Court on 28 December 2004 and
then the Chelyabinsk Regional Court on 5 April 2005 had examined the
deputy prosecutor’s decision and upheld it as lawful and
justified. However, the copies of the judicial decisions of those
dates produced by the Government concerned the applicant’s
appeal against the deputy prosecutor’s decision of 13 October
2004 (see paragraphs 30 and 31 above) and no other decisions issued
on the same dates were submitted.
E. Trial and conviction
- The
applicant stood trial before the Uysk District Court of the
Chelyabinsk Region. The victim, Ms K., and the witnesses Ms V. and
Ms Kar. did not appear at the hearings and the prosecution
requested that their pre-trial statements be read out. The court
granted the request, overriding the applicant’s objections,
referring to reports by the police officers to the effect that they
had moved home and their current whereabouts were not known.
- The
applicant’s line of defence was that of consensual intercourse.
He did not deny having had sex with Ms K., but maintained that all
contacts had been voluntary. In his submission, it was of fundamental
importance to have Ms K. examined in open court.
- The
trial court examined in particular the following evidence:
– the
pre-trial statement by the victim K. She stated that on 20 June
2004 she had agreed to meet with her friend Mr V. While waiting for
him, she was drinking coffee and chatting with her friends, Ms V. and
Ms Kar. Mr V. came at about 11 p.m. and brought along two friends,
the applicant and his co-defendant. The two girls were gone twenty
minutes later. At about 2 a.m. she fell asleep. In the morning she
asked the applicant and his co-defendant to leave, but they refused.
Instead, they beat her with a plastic bottle on the head, undressed
her by force and repeatedly raped her. After they left, she fell
asleep and only woke up at about 8 p.m. on 21 June 2004.
– the
pre-trial statements by the witnesses Ms V. and Ms Kar. They stated
that they had been visiting Ms K. at her home on the night of the
events and had seen a very drunk Mr V. come in late with two friends.
After a while they left and on the following day Ms K. told them that
she had been raped.
– the
testimony from Ms M., Ms K.’s grandmother. She testified that
at the material time K. had rented a flat elsewhere and moved out. On
22 June 2004 K. came in late at night, she was pale and shaking,
but M. abstained from putting any questions to her. Only a few days
later K. said that she had been raped, without giving any details.
– the
testimony from Mr V. He testified that he used to date K. On 20 June
2004 he got the news that the applicant and his co-defendant had been
released from prison and they decided to celebrate. They came to the
flat and got drunk with the girls. He spent the night on the sofa
together with K. and then got up very early and left for work.
– the
testimony from the forensic expert Z. She testified that the
applicant’s and his co-defendant’s underwear bore traces
of epithelium cells that could belong to a woman with Type A blood.
No blood or skin cells were found in their nail clippings.
– the
testimony from the forensic expert S. She stated that she had
examined the victim K. on 23 June 2004 and found superficial
abrasions and bruises. The injuries had been inflicted one or two
days before the examination and they could have resulted from rape or
other impact. No damage to the genital or anal area was detected.
– the
testimony from the police officer B. who worked in the missing
persons unit of the Uysk district police. He stated that Ms K. had
been on the list of missing persons since 28 February 2005 and that
there were grounds to believe that she had been a victim of loan
sharks to whom she had not repaid the debt. His report to the effect
that he had gone to Chelyabinsk to search for K. was untruthful, as
he had never gone to Chelyabinsk and as he had drafted the report
“just like that, with no real information” because the
investigator Za. had asked him to do so. He had been unable to locate
Ms Kar. because she had moved out of the Uyskoy village; he had once
seen Ms V. but he did not know where she lived.
– the
forensic biology reports prepared by the experts Z. and S.
- On
31 March 2005 the District Court found the applicant and one
co-defendant guilty as charged, finding as follows:
“The materials of the pre-trial investigation and
judicial inquiry support the finding that the defendant Salikhov is
guilty of the offences of [aggravated rape and non-consensual sexual
intercourse]. The defendant did not deny that he had engaged in
sexual intercourse with K. on 21 June [2004] in the day-time at the
following address ... The findings of a forensic biology report ...
corroborated the fact of sexual intercourse by Salikhov and K. The
following evidence confirms the non-consensual and violent
nature of the intercourse between Salikhov and K.: the statements by
the victim K. made during the pre-trial investigation and read out in
court; the statements by the witnesses Ms V. and Ms Kar. made during
the pre-trial investigation and read out in court; the testimony by
the witness Ms M. and the witness Mr V. which were logical and
consistent and which the court finds no reason to doubt. An indirect
indication of the non-consensual and violent nature of the
intercourse follows from the testimony of Mr B. in the part in which
he stated: ‘K. said: Maybe you’ve had enough sex for
today? Salikhov replied: [K.] is a smart girl, she’s got it
right, - and took her to the bedroom.’ which implies the
non-consensual nature of the intercourse between Salikhov and K.
Furthermore, the injuries found on K.’s body – bruises on
the outer surface of the hips, neck, shoulders and abrasions on the
forearms – also confirm that Salikhov had had a sexual
intercourse with her and forced her to perform oral sex on him; the
expert S. stated before court that the timing of injuries did not
contradict the information on Salikhov’s criminal acts [sic]
and that such injuries might be the product of a non-consensual
sexual intercourse... The fact that the forensic study did not
uncover any injuries to K.’s genital or anal area does not
exclude the possibility that sexual acts had been performed on K.’s
against her will; the expert S. explained to the court that a
forcible intercourse is possible without injuring the genitals or the
anal opening and that she could not categorically exclude that there
might be some indications of violent sexual intercourse. The scene of
the offence (a fourth-floor flat), the identity of the participants
(two men, both recently released from penitentiary facilities, one of
them infected with tuberculosis, and a young woman), the number and
frequency of sexual intercourse and violent acts demonstrate that the
intercourse was carried out against the victim’s will.”
- In addition, the District Court found the applicant
guilty of insulting six police officers on 21 October 2004 (see
paragraphs 41-47 above). The finding of his guilt was founded on the
statements by the police officers. The court held that the
application of handcuffs had been lawful because the applicant had
refused to leave the cell.
- The
applicant was sentenced to three years and six months’
imprisonment in a high-security colony.
- On
the same day the District Court issued two separate decisions
“concerning breaches of law committed during the pre-trial
investigation”. The first decision related to a belated
notification of the decision to prepare the forensic biology report:
the report was requested on 25 June 2004 but the applicant was only
informed of it on 29 June 2004. The second decision concerned the
report by the police officer B., which stated that, further to a
prosecutor’s request, on 15 November 2004 he had visited the
registered residence of the victim K. in Chelyabinsk and talked to
the neighbours, but no one had seen her or knew her. According to the
officer’s testimony in court, he had never gone to Chelyabinsk
or talked to anyone there and that he had written the report “just
like that, with no real information”. The District Court
considered this to be a gross violation of criminal procedure and
requested the chief officer of the Uysk police station to take
measures and report back to the court.
- In
his statement of appeal, the applicant submitted in particular that
pre-trial written depositions by the victim and eyewitnesses had been
read out in breach of the domestic law.
- On
23 May 2005 the Chelyabinsk Regional Court rejected the appeal and
upheld the conviction in substance. The appeal court found, in
particular, that the first-instance court had taken “sufficient
measures” to secure Ms K.’s appearance.
II. RELEVANT DOMESTIC LAW
A. Taking of samples
- Article 202 of the Code of Criminal Procedure
regulates the way in which samples may be obtained for a comparative
study. The investigator may obtain samples of handwriting or body
fluids from a suspect or defendant if it is necessary to check
whether or not he or she has left traces in a specific place or on
material evidence (paragraph 1). It is prohibited to obtain samples
by methods that endanger the individual’s life and limb or
diminish his honour and dignity (paragraph 2). If necessary, samples
can be taken by a specialist (paragraph 3).
B. Use of handcuffs and rubber truncheons
- The
Pre-Trial Detention Act, no. 103-FZ of 15 July 1995, provides
that handcuffs may be used on a suspect or accused to put a stop to
unlawful resistance on his part and to prevent him from escaping or
from causing harm to others or himself (section 45).
- The
Police Act, no. 1026-I of 18 April 1991, in force at the material
time, sets out an exhaustive list of circumstances in which special
means, including rubber truncheons and handcuffs, and firearms may be
used.
- Handcuffs may only be applied to overcome resistance
offered to a police officer, to arrest an individual caught in the
act of committing a crime and attempting to escape, and to bring
arrestees to police stations, to transport and protect them if their
behaviour allows the conclusion that they are liable to escape, cause
harm to themselves or other individuals or offer resistance to police
officers (section 14 § 1 (2, 3, 5)).
- Rubber truncheons may only be used to fend off an
assault on police officers or civilians, overcoming resistance
offered to a police officer, or putting an end to mass breaches of
public order or group actions that interfere with the functioning of
transport, communications or organisations (section 14 § 1 (1,
2, 7)).
C. Examination of witnesses in criminal proceedings
- The
Code of Criminal Procedure provides that witnesses are to be examined
directly by the trial court (Article 278). Statements given by the
victim or a witness during the pre-trial investigation can be read
out with the consent of the parties in two cases: (i) if there is a
substantial discrepancy between those statements and the testimony
before the court; or (ii) if the victim or witness has failed to
appear in court (Article 281).
- If
a witness does not obey a summons to appear without a good reason,
the court may order that the police or the bailiffs should bring him
to the courtroom by force (Article 113).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION IN
CONNECTION WITH OBTAINING SAMPLES
- The
applicant complained that the forcible removal
of his underwear accompanied by beatings and the cutting of his
fingernails, as well as the attempt to take a blood sample by force,
breached Article 3 of the Convention. He also complained that no
effective investigation was carried out into this incident. Article 3
of the Convention provides as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties’ submissions
- The
Government submitted that the forcible removal of the applicant’s
clothing and the taking of nail clippings had been required for the
protection of the rights of the victim in the criminal case, as well
as for the purpose of ensuring “objectivity of criminal
proceedings”. The applicant had been asked to give samples
voluntarily but he had refused, and the samples had had to be
obtained by force. The blood sample was not taken because the
applicant behaved aggressively, waving his arms and using obscene
language. The applicant was handcuffed in accordance with sections 43
and 45 of the Pre-trial Detention Act. The taking of samples and the
use of handcuffs were found to have been lawful by the Russian
courts. The Government considered that there was no violation of
Article 3 under its substantive or procedural limbs.
- The
applicant stressed that he had resisted the
removal of his underwear and clipping of his fingernails because the
decision on commissioning a forensic study had not been notified to
him and he had therefore believed that the police were acting
unlawfully. The belated notification of the decision was subsequently
established by the separate decision of the Uysk District Court of 31
March 2005. Furthermore, it was not necessary to cut his fingernails
to obtain nail clippings. The investigator M. had cut his nails
together with a layer of skin, which resulted in bleeding and intense
pain. The investigator violently pushed the applicant against the
table and he hit his forehead against the computer. The removal of
his underwear was not only violent but also degrading, because no
replacement underwear was provided and the applicant was paraded
naked from the waist down around the police station. The humiliation
and violence to which the applicant was subjected could not be
justified by the need to obtain the samples by force. The
investigation into his complaints was incomplete and one-sided,
because the decision only reflected the version of events as put
forward by the police officers; no attempts were made to examine any
witnesses or collect forensic evidence. The applicant believed that
Article 3 had been breached both under its substantive and procedural
limbs.
2. The Court’s assessment
(a) Compliance with Article 3 as regards
the alleged ill-treatment by the police
- The
Court reiterates the applicable principles as they have been
summarised in the leading case Jalloh v. Germany ([GC], no.
54810/00, ECHR 2006 IX ..., internal references omitted):
“69. With respect to medical
interventions to which a detained person is subjected against his or
her will, Article 3 of the Convention imposes an obligation on the
State to protect the physical well-being of persons deprived of their
liberty, for example by providing them with the requisite medical
assistance. The persons concerned nevertheless remain under the
protection of Article 3, whose requirements permit of no derogation.
A measure which is of therapeutic necessity from the point of view of
established principles of medicine cannot in principle be regarded as
inhuman and degrading...
70. Even where it is not motivated by reasons
of medical necessity, Articles 3 and 8 of the Convention do not as
such prohibit recourse to a medical procedure in defiance of the will
of a suspect in order to obtain from him evidence of his involvement
in the commission of a criminal offence. Thus, the Convention
institutions have found on several occasions that the taking of blood
or saliva samples against a suspect’s will in order to
investigate an offence did not breach these Articles in the
circumstances of the cases examined by them.
71. However, any recourse to a forcible
medical intervention in order to obtain evidence of a crime must be
convincingly justified on the facts of a particular case. This is
especially true where the procedure is intended to retrieve from
inside the individual’s body real evidence of the very crime of
which he is suspected. The particularly intrusive nature of such an
act requires a strict scrutiny of all the surrounding circumstances.
In this connection, due regard must be had to the seriousness of the
offence in issue. The authorities must also demonstrate that they
took into consideration alternative methods of recovering the
evidence. Furthermore, the procedure must not entail any risk of
lasting detriment to a suspect’s health.
72. Moreover, as with interventions carried
out for therapeutic purposes, the manner in which a person is
subjected to a forcible medical procedure in order to retrieve
evidence from his body must not exceed the minimum level of severity
prescribed by the Court’s case-law on Article 3 of the
Convention. In particular, account has to be taken of whether the
person concerned experienced serious physical pain or suffering as a
result of the forcible medical intervention.
73. Another material consideration in such
cases is whether the forcible medical procedure was ordered and
administered by medical doctors and whether the person concerned was
placed under constant medical supervision.
74. A further relevant factor is whether the
forcible medical intervention resulted in any aggravation of his or
her state of health and had lasting consequences for his or her
health.”
- The
Court notes that the Government did not dispute the applicant’s
account of the events, which it will accordingly use as the factual
basis for its assessment.
- It
is observed at the outset that the clipping of the applicant’s
fingernails and the attempt to take his blood were not required by
medical reasons, that is, they were not needed to protect the
applicant’s health. Rather, those procedures were aimed at
securing evidence of a rape. This finding does not of itself warrant
the conclusion that the intervention contravened Article 3, as the
Convention does not, in principle, prohibit recourse to a forcible
medical intervention that will assist in the investigation of an
offence (see Jalloh, cited above, §§ 70 and 76).
Nevertheless, any interference with a person’s physical
integrity carried out with the aim of obtaining evidence must be the
subject of rigorous scrutiny, with the following factors being of
particular importance: the extent to which forcible medical
intervention was necessary to obtain the evidence, the health risks
for the suspect, the manner in which the procedure was carried out
and the physical pain and mental suffering it caused, the degree of
medical supervision available and the effects on the suspect’s
health. In the light of all the circumstances of the individual case,
the intervention must not attain the minimum level of severity that
would bring it within the scope of Article 3. The Court will now
examine each of these elements in turn.
- As
regards the extent to which the forcible medical intervention was
necessary to obtain the evidence, the Court notes that rape is a
serious criminal offence and that States have a positive obligation
inherent in Articles 3 and 8 of the Convention to enact legislation
which provides effective punishment for the crime of rape and to
apply them in practice through effective investigation and
prosecution (see M.C. v. Bulgaria, no. 39272/98, §
153 et passim, ECHR 2003 XII). The purpose of the medical
intervention was the collection of biological samples which could be
later examined for traces of the victim’s blood or epithelial
cells. Such traces being by their nature fragile and perishable, time
was of the essence and the procedures had to be carried out urgently.
The domestic law did not make the collection of biological samples
conditional on the suspect’s consent; nor did it prohibit the
investigative authorities from resorting to coercive measures should
the suspect refuse to cooperate (see paragraph 62 above). It follows
that the forcible intervention was not unlawful in domestic legal
terms, however, the question remains whether or not recourse to
physical force was necessary to obtain the evidence in the particular
circumstances of the case.
- It
appears that the applicant had initially demonstrated willingness to
cooperate with police demands. He had agreed to hand over his
underwear on condition that he was provided with another pair. This
condition was not unreasonable or particularly difficult to satisfy
and the Court sees no explanation as to why the police favoured
instead the use of force, proceeding as they did to beat the
applicant with rubber truncheons, to handcuff him and to drag him
through the corridor. The situation quickly degenerated and violence
escalated to the point where the applicant was not invited to submit
voluntarily to the clipping of his nails but rather was overpowered
and pinned down by force against the table during the procedure. The
Court cannot speculate how the events could have unfolded, or whether
the applicant would have consented to giving biological samples had
the police officers not resorted to violence, but the fact remains
that in the circumstances of the case the police violence was
gratuitous and that the use of brute force did not appear to have
been justified by the applicant’s conduct. Accordingly, the
Court is not satisfied that the forcible medical intervention was
essential to obtaining the evidence.
- The Court further notes that before and during the
interventions the applicant was repeatedly beaten with a rubber
truncheon, that he had been pushed around and injured his head
against a desktop computer, and that when attempting to take a blood
sample the police officers had pinned him to the floor, using their
weight on his limbs and head. It has been the Court’s constant
position that any recourse to physical force in respect of a person
deprived of his liberty 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, among many others, Kopylov v. Russia, no. 3933/04, §§
160-165, 29 July 2010; Dedovskiy and Others v. Russia,
no. 7178/03, § 81, 15 May 2008; Sheydayev v. Russia,
no. 65859/01, § 59, 7 December 2006; and Ribitsch
v. Austria, 4 December 1995, § 38, Series A no. 336). As the
Court has already found above, the applicant appeared to have been
initially disposed to cooperate with the police, without making any
excessive or unreasonable demands, and nothing in the applicant’s
demeanour could be interpreted as an assault upon, or resistance to,
the police orders. In these circumstances, the use of a rubber
truncheon and handcuffs was not only unnecessary but also in breach
of the applicable provisions of Russian law (see paragraph 66 above).
The gratuitous violence to which the police officers deliberately
resorted was not and could not be conducive to facilitating the
collection of forensic evidence. Rather, it was intended to arouse in
the applicant feelings of fear and inferiority and to break his
psychological resistance. The purpose of that treatment was to debase
the applicant and drive him into submission. Moreover, the treatment
to which the applicant was subjected in the instant case had an
additional element of humiliation, because he was stripped of his
underwear and paraded naked from the waist down through the corridors
of the police station, with his hands cuffed behind his back.
- Discussion
of the health risks associated with forcible medical intervention
appears superfluous in the circumstances of the present case.
Nevertheless, the Court cannot but note the applicant’s
submission that the clipping of his nails so close to the skin that
his fingers started bleeding must have been painful. The procedure
was carried out by an investigator, without appropriate supervision
by a medical specialist, and deviated from the established best
practice in the field of forensic medicine in that it did not appear
to have represented the least intrusive method of retrieving required
samples of material from under his fingernails.
- The
foregoing considerations are sufficient to enable the Court to
conclude that the forcible medical intervention and the beatings that
accompanied it went beyond the minimum level of severity required to
bring the situation within the scope of Article 3. The applicant
therefore has been subjected to inhuman and degrading treatment in
breach of that provision.
- Accordingly,
there has been a violation of Article 3 under its substantive limb.
(b) Compliance with Article 3 as regards
the effectiveness of the investigation
- The
Court further reiterates that where an individual raises an arguable
claim that he has been seriously ill-treated in breach of Article 3,
that provision requires by implication that there should be an
effective official investigation. For the investigation to be
regarded as “effective”, 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 of their decisions. They must take the reasonable steps
available to them to secure the evidence concerning the incident,
including, inter alia, eyewitness testimony, forensic
evidence, and so on. 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, and a requirement of promptness and reasonable expedition
is implicit in this context (see, among many authorities, Mikheyev
v. Russia, no. 77617/01, § 107 et seq., 26
January 2006, and Assenov and Others v. Bulgaria, 28 October
1998, § 102 et seq., Reports of Judgments and
Decisions 1998 VIII).
- The
applicant complained to the prosecutor about the beatings inflicted
by the police, the forceful removal of his underwear, clipping of his
nails and attempted taking of a blood sample. His detailed account of
the events, together with the visible bodily injuries, amounted
to an “arguable claim” of ill-treatment. Accordingly, the
authorities had an obligation to carry out an effective investigation
into the circumstances of the alleged ill-treatment.
- In
the Court’s view, the manner in which the inquiry was conducted
reveals the investigative authorities’ determination to dispose
of the matter in a hasty and perfunctory fashion (compare Kapanadze
v. Russia, no. 19120/05, § 47, 10
February 2011, and Denis Vasilyev v. Russia,
no. 32704/04, § 155, 17 December 2009). The decisions
refusing to institute criminal proceedings were limited in scope to
the statements of the police officers and investigators, all of whom
denied using any physical force on the applicant. The applicant’s
version of events was not mentioned, and it does not appear that the
deputy prosecutor interviewed him or arranged a confrontation between
him and the police officers from the Uysk police station who had
allegedly been involved in the ill-treatment. Moreover, no genuine
attempt was made to explain the origin of a bruise on the applicant’s
head or to examine whether the use of force for collecting forensic
evidence was compatible with the requirements of the domestic law and
proportionate to the legitimate aim pursued.
- The
Court further notes that there was an apparent link between the
officials responsible for the investigation and those allegedly
involved in the ill-treatment (compare Mikheyev, cited above,
§ 115). The inquiry had been conducted by the Uysk deputy
prosecutor, who had been the immediate superior of Mr Zh., an
investigator with the Uysk prosecutor’s office, who had been
present throughout the attempted medical interventions and witnessed
the ill-treatment inflicted by the police office on the applicant. In
these circumstances, the inquiry fell short of the requirement of
independence.
- In
the light of the foregoing, the Court finds that the authorities
failed to carry out an effective criminal investigation into the
applicant’s allegations of ill-treatment. Accordingly, there
has also been a violation of Article 3 under its procedural aspect.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON
ACCOUNT OF CONDITIONS OF DETENTION
- The
applicant alleged a violation of Article 3 on
account of the appalling conditions in which he had been detained at
the Uysk police station.
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
- The
Government accepted that the conditions of the applicant’s
detention had been in breach of Article 3.
- The
Court reiterates that it has already examined the conditions of
detention obtaining in police stations in various Russian regions and
found them to be in breach of Article 3 (see Kuptsov and Kuptsova
v. Russia, no. 6110/03, § 69 et
seq., 3 March 2011; Nedayborshch v. Russia, no.
42255/04, § 32, 1 July 2010; Khristoforov v. Russia, no.
11336/06, §§ 23 et seq., 29 April 2010; Shchebet v.
Russia, no. 16074/07, §§ 86-96, 12 June 2008; and
Fedotov v. Russia, no. 5140/02, § 67, 25 October
2005).
- Although
it does not appear that the Uysk police detention unit suffered from
the problem of overcrowding to the same extent as did some other
units in previous cases, the sanitary conditions there, as described
by the applicant and the domestic supervising authorities, were just
as appalling. The situation where inmates had to use buckets to
relieve themselves – in the presence of other inmates –
can only be described as degrading. The Court also takes note of
other deficiencies of the unit acknowledged by the domestic
authorities, such as the lack of bedding, restricted access to
running water and no provision for outdoor exercise, which must have
undoubtedly contributed to the distress that the applicant felt. The
Court is particularly struck by the inadequate catering arrangements:
it transpires from the prosecutor’s letters that food was given
only once a day and only on weekdays.
- Having
regard to the cumulative effect of the factors analysed above, the
Court considers that the conditions in which the applicant was held
at the Uysk police station diminished his dignity and caused him
distress and hardship of an intensity exceeding the unavoidable level
of suffering inherent in detention. It follows that the conditions of
the applicant’s detention amounted to inhuman and degrading
treatment.
- There
has therefore been a violation of Article 3 of the Convention on
account of the conditions of the applicant’s detention at the
Uysk police station.
III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION IN
CONNECTION WITH THE EVENTS OF 21 OCTOBER 2004
- The
applicant complained that the conditions in which he had been taken
to the court-house on 21 October 2004 had amounted to inhuman or
degrading treatment in breach of Article 3 of the Convention. He also
complained that no effective investigation was carried out in this
respect.
A. Admissibility
- The
Court notes that the this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention.
Although the outcome of the applicant’s judicial appeal against
the prosecutor’s decision refusing institution of criminal
proceedings cannot be established with certainty (see paragraph 52
above), the Court notes that it is incumbent on the Government to
raise any objections as to the non-exhaustion of domestic remedies,
and that they have not raised any such objections in the instant
case. Accordingly, the complaint is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
- The
Government submitted that the applicant had refused to leave his cell
to go to the court-house, and had offered strong resistance to the
escorting police officers. He had been handcuffed in accordance with
section 14 of the Police Act and taken outside. However, he had
continued to behave aggressively, spitting at police officers; his
spittle had hit their faces and uniform. Having examined the
applicant’s complaint, the district prosecutor had refused to
institute criminal proceedings, but the applicant himself was
subsequently convicted of insulting State officials. The
investigation into the applicant’s complaints was thorough,
diligent and independent. The Government concluded that there had
been no violation of Article 3 under its substantive or procedural
limb.
- The
applicant maintained that he had not been told where he would be
taken and that it was for that reason that he had refused to comply
with the police orders and leave the cell. The officers had started
dragging him out and had struck his head against a bedpost. The
applicant’s reaction had been one of protest against harsh and
brutal treatment. The use of force by the police was manifestly out
of proportion to the resistance he had offered. The applicant pointed
out that he had shown a wound on his forehead and his wet and ragged
clothing to the judge, who had paid little heed to his statements.
The inquiry into his complaints had been superficial, as the
investigator limited its scope to obtaining statements from the
police station. The applicant believed that there had been a
violation of Article 3 under both its substantive and procedural
limbs.
2. The Court’s assessment
(a) Compliance with Article 3 as regards
the alleged ill-treatment by the police
- The
Court notes that in the late afternoon of 21 October 2004 the
applicant was brought to Uysk police station from the remand prison,
which was located some 165 kilometres away. Shortly thereafter a
police officer told him to get out of the cell and to follow him. It
cannot be established with certainty whether or not the applicant was
informed where he would be taken, however, the fact remains that he
refused to do as he was told.
- The
police officers chose to overcome the applicant’s resistance by
force. Four officers overpowered him and dragged him out of the cell
by the legs, punching and beating him. In the process, the applicant
hit his head against a bedpost and was injured on the forehead. The
Court reiterates once again that any recourse to physical force which
has not been made strictly necessary by the detainee’s own
conduct diminishes human dignity and is in principle an infringement
of the right set forth in Article 3 of the Convention. The concept of
strict necessity implies that in situations such as the one obtaining
in the instant case the use of force should be a means of last resort
rather than an automatic reaction on the part of the police officers
to any resistance they may encounter from a detainee. In the present
case the officers did not make any attempt to negotiate with the
applicant by, for example, stating clearly why and where they were
going to take him, and for how long, or otherwise to secure his
cooperation by non-violent means. Even if they had not managed to
cajole him into following them, it would have been sufficient to
immobilise him so he could be taken out of the cell. The beatings and
punches they inflicted on him amounted to gratuitous violence of a
retaliatory nature or a form of reprisal or corporal punishment (see
Dedovskiy and Others, § 83 in fine, cited above).
The Court considers that such conduct by the police was in breach of
the guarantee against inhuman treatment.
- It
is further noted that the police did not allow the applicant to put
on his shoes and that they dragged him across the courtyard through
the autumnal slush and puddles. As a consequence, the applicant’s
clothing got wet and covered in mud, he stayed in his damp and ragged
clothes and barefoot on the journey in the prison van, at the
court-house throughout the hearing on the detention matter, and on
the way back to the remand centre. The applicant’s undignified
appearance before a court of law must have caused him emotional
distress and physical inconvenience. The treatment to which the
applicant was subjected was unnecessary, and did not pursue any
identifiable purpose other than to belittle, debase and humiliate
him. The Court reiterates that in the case of Hurtado v.
Switzerland (no. 17549/90) the former Commission determined that
the applicant’s wearing of soiled clothing for one day, during
a hearing before a judge and on various journeys, resulting from the
failure of the authorities to take elementary hygiene measures, was
humiliating and debasing and therefore degrading within the meaning
of Article 3 (see the former Commission’s report of 8 July
1993, Series A no. 280-A). The Court considers that the situation was
similar in relevance to that obtaining in the present case, and that
the treatment suffered by the applicant should likewise be
characterised as degrading.
- In
the light of the foregoing considerations, the Court finds that in
the late afternoon of 21 October 2004 the applicant was ill-treated
by the police in breach of Article 3 of the Convention and that the
treatment inflicted on him was both inhuman and degrading. There has
therefore been a violation of that provision under its substantive
limb.
(b) Compliance with Article 3 as regards
the effectiveness of the investigation
- The
Court notes that the applicant appeared before a judge in wet and
dirty clothing and that he bore recent and prominently visible
injuries on his face. He described the treatment to which the police
had subjected him and insisted that it be recorded in the minutes.
Under such circumstances, the Court considers that the applicant had
an “arguable claim” of ill-treatment and that the
authorities had an obligation to carry out an effective investigation
into the events.
- The
Court notes, however, that, confronted with visible injuries on a
detainee supplemented by his detailed account of ill-treatment, the
judge limited his intervention to a dismissive remark and failed to
take any measures with a view to launching an official inquiry into
the matter. Nor did the prosecutor, who was also in court and must
have witnessed the injuries, take any action. The Court considers
that in a situation where a person who is under the effective control
of the authorities displays easily visible injuries, the authorities
must act of their own motion once the matter has come to their
attention and not leave it to the initiative of the injured
individual to lodge a formal complaint.
- As
it happened, the applicant lodged a formal complaint with the Uysk
prosecutor’s office, but the institution of criminal
proceedings against the police officers was refused by a decision of
19 November 2004. By the same decision, he was told that a criminal
case had been opened against him in connection with his aggressive
behaviour and spitting at the policemen. Judging from the contents of
the decision, the deputy prosecutor took no independent investigative
steps. He did not seek to hear the applicant’s version of
events, nor did he obtain any medical certificate attesting to the
degree and extent of his injuries. He relied entirely on the
statements given by the police officers, who had a vested interest in
the outcome of the proceedings. The Court cannot consider that the
inquiry was sufficient in scope or that it represented a serious
attempt to find out what happened. Nor was the investigation
effective in the sense of being capable of leading to a determination
of whether the force used by the police was or was not justified in
the circumstances (compare Kaya v. Turkey, 19 February 1998,
§ 87, Reports of Judgments and Decisions 1998 I).
- Finally,
the Court observes that the independence of the authority which
conducted the investigation, the Uysk prosecutor’s office, was
open to doubt. This was the same authority that filed criminal
charges against the applicant for insulting police officers and
carried out an investigation of these charges. Not only did this
create a conflict of interest but in doing so the prosecutor’s
office had clearly indicated its preference to uphold the version of
events given by the police officers, and could not therefore fulfil
the requirements of independence and impartiality as regards the
inquiry into the applicant’s complaints of ill-treatment.
- In
the light of the serious deficiencies identified above, the Court
concludes that the investigation into the ill-treatment was neither
effective nor independent, and that there has therefore been a breach
of Article 3 also under its procedural limb.
IV. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained under Article 6 §§
1 and 3 (d) that he was unable to examine in open court the victim Ms
K. and the witnesses Ms V. and Ms Kar. who were the key
witnesses for the prosecution. The relevant parts of Article 6
provide as follows:
“1. In the determination of... any
criminal charge against him, everyone is entitled to a fair...
hearing...
...
3. Everyone charged with a criminal offence
has the following minimum rights:
...
(d) to examine or have examined witnesses
against him and to obtain the attendance and examination of witnesses
on his behalf under the same conditions as witnesses against him...”
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties’ submissions
- The
Government submitted that the Russian authorities had taken all
possible measures to establish the whereabouts of Ms K., Ms Kar. and
Ms V. by means of sending summons, making address inquiries, issuing
decisions that they should be obliged to appear and interviewing
their relatives and friends. However, it proved to be impossible to
locate them and ensure their attendance during the trial. Their
written statements made at the pre-trial stage were read out in open
court with due respect for the rights of the defence. In any event,
their testimony had not been decisive: the finding of the applicant’s
guilt rested on statements by other witnesses, forensic evidence, the
applicant’s own confession and testimony by his co-defendant.
The Government considered that there was no violation of Article 6 §§
1 and 3 (d).
- The
applicant stressed that he had not waived his right to have the
witnesses Ms K., Ms Kar. and Ms V. examined in open court. He had
objected to the reading out of their statements at the pre-trial
investigation stage. Ms K.’s testimony was of decisive
importance for the case: she had been alone in the flat with the
applicant and his co-defendant. The other witnesses were not present
at the scene and their statements covered periods of time which
preceded or followed the alleged rape. The forensic evidence
confirmed that the sexual act had taken place, but only Ms K. could
testify as to the non-consensual or violent nature of the act and
describe that the defendants had acted in collision with each other.
The applicant did not have the opportunity to examine Ms K. either at
the stage of the pre-trial investigation or in court. As the District
Court’s decision of 31 March 2005 demonstrated, the police
officer’s report about the alleged impossibility to locate Ms
K. was a forgery. The Russian authorities did not make any real
attempt to find her and secure her attendance at trial. There was
therefore a violation of Article 6 §§ 1 and 3 (d).
2. The Court’s assessment
- The
Court reiterates that the guarantees in paragraph 3 (d) of Article 6
are specific aspects of the right to a fair hearing set forth in
paragraph 1 of this provision which must be taken into account in any
assessment of the fairness of proceedings. Article 6 § 3
(d) enshrines the principle that, before an accused can be convicted,
all evidence against him must normally be produced in his presence at
a public hearing with a view to adversarial argument. Exceptions to
this principle are possible but must not infringe the rights of the
defence, which, as a rule, require that the accused should be given
an adequate and proper opportunity to challenge and question a
witness against him, either when that witness makes his statement or
at a later stage of proceedings (see Lucà v. Italy,
no. 33354/96, §§ 39-40, ECHR 2001-II).
- There
are two requirements which follow from the above general principle.
First, there must be a good reason for the non-attendance of a
witness. Second, when a conviction is based solely or to a decisive
degree on depositions that have been made by a person whom the
accused has had no opportunity to examine or to have examined,
whether during the investigation or at the trial, the rights of the
defence may be restricted to an extent that is incompatible with the
guarantees provided by Article 6 (see Al-Khawaja and Tahery v.
the United Kingdom [GC], nos. 26766/05 and 22228/06,
§ 119, 15 December 2011).
- Nonetheless,
even where a hearsay statement is the sole or decisive evidence
against a defendant, its admission as evidence will not automatically
result in a breach of Article 6 § 1. At the same time where a
conviction is based solely or decisively on the evidence of absent
witnesses, the Court must subject the proceedings to the most
searching scrutiny. The question in each case is whether there are
sufficient counterbalancing factors in place, including measures that
permit a fair and proper assessment of the reliability of that
evidence to take place. This would permit a conviction to be based on
such evidence only if it is sufficiently reliable given its
importance in the case (see Al-Khawaja and Tahery, cited
above, § 147).
- The
Court will therefore have to consider three issues in the instant
case: first, whether a reasonable effort was made by the authorities
to secure the appearance of the defaulting witnesses in court;
second, whether their untested evidence was the sole or decisive
basis for the applicant’s conviction; and third, whether there
were sufficient counterbalancing factors, including strong procedural
safeguards, to ensure that the trial, judged as a whole, was fair
within the meaning of Article 6 §§ 1 and 3 (d).
- The
applicant stood trial on the charge of rape of Ms K. He did not deny
having had sexual intercourse with Ms K. but maintained that it had
been a consensual and voluntary act. There were no direct witnesses
to the intercourse: the applicant, his presumed accomplice and Ms K.
had been the only ones present in her room during the events. Ms K.’s
girlfriends (Ms V. and Ms Kar.) had left shortly after the
applicant’s arrival at Ms K.’s place, and Ms K.’s
former boyfriend (Mr V.) had been so drunk that he had fallen fast
asleep in the adjoining room. The witnesses, including Ms K.’s
grandmother, had heard about the alleged rape from Ms K. and their
testimony was hearsay. The forensic evidence did not establish a link
between minor injuries on Ms K.’s body and the biological
samples taken from the applicant. In these circumstances, the Court
finds that the finding of the non-consensual nature of the
intercourse rested, to a decisive extent, on Ms K.’s pre-trial
depositions, and that in order to receive a fair trial the applicant
should have had an opportunity to examine her in open court.
- The
Government claimed that the domestic authorities had taken “all
possible measures” to locate the defaulting witnesses by
sending summons, making address inquiries, interviewing relatives and
friends and ordering the police to bring them to the courtroom. The
Court, however, notes that they did not produce any documents in
support of their submissions, whereas the domestic judgments did not
contain any information on the measures that had been deployed to
secure the attendance of the witnesses. On the other hand, it appears
from the District Court’s separate decision issued on the date
of the applicant’s conviction that the police officer’s
report of a visit to Ms K.’s home and conversations with her
neighbours had been a fabrication. The police officer had admitted to
the court that he had not gone to her residence or attempted to
locate her, but had drafted the report because the investigator had
asked him to do so.
- The
Court is struck by the passive attitude of the Uysk District Court,
which was fully aware of the fraud committed by the police officer
and considered it to be a gross violation of the rules of criminal
procedure, yet made no effort to secure the attendance of the crucial
witness for the prosecution. In these circumstances, the District
Court’s decision that Ms K.’s pre-trial statement
should be read out because the potential means of locating her had
been exhausted, appears unjustified and lacking a basis in fact. The
Chelyabinsk Regional Court did not examine this matter in any detail,
and summarily rejected the applicant’s appeal, referring to
non-specific “sufficient measures” which had allegedly
been taken to secure Ms K.’s appearance.
- It
has not therefore been shown that that the Russian authorities have
taken sufficient and adequate measures to secure Ms K.’s
appearance, and she never appeared to testify before a court in the
presence of the applicant. The applicant was not provided with an
opportunity to scrutinise the manner in which Ms K. had been
questioned by the police, nor was he then or later provided with the
opportunity to have questions put to her. Furthermore, as Ms K.’s
statements to the investigator were not recorded on video, neither
the applicant nor the judges were able to observe her demeanour under
questioning and thus form their own impression of her reliability
(compare Makeyev v. Russia, no. 13769/04, § 42, 5
February 2009). Finally, the Court notes that the domestic courts did
not put in place any counterbalancing arrangements which could have
compensated for the difficulties caused to the defence by the
admission of untested evidence (compare Bonev v. Bulgaria, no.
60018/00, § 44, 8 June 2006, and, by contrast, Al-Khawaja and
Tahery, cited above, §§ 156-158).
- Having
regard to the fact that the applicant was not afforded any
opportunity to question Ms K., whose testimony was of decisive
importance for establishing his guilt or otherwise of the offence of
which he was later convicted, and that the authorities failed to make
a reasonable effort to secure her presence in court or compensate for
the difficulties experienced by the defence on account of the
admission of her evidence, the Court finds that there has been a
violation of Article 6 §§ 1 and 3 (d)
of the Convention. This finding makes it unnecessary to pursue a
separate examination of the complaint about the non-attendance of two
other witnesses, Ms V. and Ms Kar.
V. ALLEGED HINDRANCE TO THE APPLICANT’S RIGHT OF
INDIVIDUAL PETITION
- By
a letter of 15 June 2010, the applicant also complained under
Articles 3 and 34 of the Convention that on 22 July 2009 he had
been beaten up by the prison director in connection with his refusal
of the Government’s offer of a friendly settlement. He
submitted a statement from Mr Z. who indicated that in May 2010 he
had heard from the applicant that the applicant had been beaten up by
the prison governor.
- The
Court observes that the applicant’s allegations are not
supported by any evidence, and that Mr Z.’s statement is
hearsay based on the applicant’s own words. Moreover, it is
unclear why he chose to wait for almost a year after the events
before bringing this matter to the attention of the Court.
- It
follows that the allegation of hindrance to the right of individual
petition has not been made out and must be rejected as
unsubstantiated.
VI. 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 in total 110,000 euros (EUR)
in respect of non-pecuniary damage.
- The
Government considered that the claim was excessive.
- The
Court has found that the applicant was a victim of inhuman and
degrading treatment on more than one occasion, which was not
investigated in an effective manner, and that he was denied a fair
trial. Deciding on an equitable basis, it awards the applicant EUR
20,000 in respect of non-pecuniary damage, plus any tax that may be
chargeable.
B. Costs and expenses
- The
applicant also claimed EUR 6,000 for legal costs
(exclusive of legal aid) and EUR 700 for various expenses, including
postal and copying expenses.
- The
Government pointed out that no supporting documents were provided.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being
had to the documents in its possession and the above
criteria, the Court considers it reasonable to award the sum
of EUR 1,000 for the proceedings before the Court, plus any tax that
may be chargeable on the applicant.
C. Default interest
- 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
- Declares the application
admissible;
- Holds that there has been a violation of Article
3 of the Convention under its substantive and procedural limbs on
account of the circumstances in which the forensic evidence was
taken;
- Holds that there has been a violation of Article
3 of the Convention on account of the conditions of the applicant’s
detention at the Uysk police station;
- Holds that there has been a violation of Article
3 of the Convention under its substantive and procedural limbs on
account of the circumstances surrounding the applicant’s
transport to the court-house on 21 October 2004;
- Holds that there has been a violation of Article
6 §§ 1 and 3 (d) of the Convention;
- Holds that the allegation of hindrance to the
right of individual petition under Article 34 of the Convention has
not been made out;
- 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
20,000 (twenty thousand euros), plus any tax that may be chargeable,
in respect of non-pecuniary damage;
(ii) EUR
1,000 (one thousand 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
