KOROBOV AND OTHERS v. ESTONIA - 10195/08 - HEJUD [2013] ECHR 250 (28 March 2013)

In the case of Korobov and Others v. Estonia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

          Isabelle Berro-Lefèvre, President,
          Mirjana Lazarova Trajkovska,
          Julia Laffranque,
          Linos-Alexandre Sicilianos,
          Erik Møse,
          Ksenija Turković,
          Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 5 March 2013,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

The case originated in an application (no. 10195/08) against the Republic of Estonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by seven Estonian residents on 29 February 2008. The first applicant, Mr Aleksandr Korobov, is an Estonian national born in 1959. The second applicant, Mr Sergei Kovaljov, is an Estonian national born in 1992. The third applicant, Mr Rostislav Makariev, is a Russian national born in 1985. The fourth applicant, Mr Gennadi Mihhaidarov, is an Estonian national born in 1983. The fifth applicant, Mr Sergei Petrov, is a person of undetermined citizenship born in 1977. The sixth applicant, Mr Dmitry Tarasov, is a Russian national born in 1981. The seventh applicant, Mr Valeri Zatvornitski, is a person of undetermined citizenship born in 1970.

The applicants were represented by Mr B. Bowring and Mr P. Leach, university professors and lawyers at the European Human Rights Advocacy Centre (London). The Estonian Government (“the Government”) were represented by their Agent, Ms M. Kuurberg, of the Ministry of Foreign Affairs. The Russian Government exercised their right of third-party intervention in accordance with Article 36 § 1 of the Convention and were represented by the Representative of the Russian Federation at the European Court of Human Rights, Mr G. Matyushkin.

The applicants alleged, in particular, that they had been ill-treated during their arrest and detention and that no effective investigation had been carried out in respect of their complaints.

On 14 September 2010 the application was declared partly inadmissible and the complaint concerning the first, fourth, fifth and seventh applicants’ ill-treatment and the complaint lodged by all seven applicants concerning their deprivation of liberty, as well as the related complaint concerning their right to compensation for the allegedly unlawful detention were 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).

On 1 February 2011 the Court changed the composition of its Sections (Rule 25 § 1 of the Rules of Court) and this application was assigned to the newly composed First Section.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicants live in Tallinn, except for the fourth applicant who lives in Kiviõli.

A. Background of the case

The Bronze Soldier, originally named “Monument to the Liberators of Tallinn”, was unveiled on 22 September 1947, on the third anniversary of the entry of the Soviet Red Army into Tallinn. It was erected in Tõnismägi, central Tallinn, above a small burial site of Soviet soldiers’ remains reburied in April 1945. The monument consisted of a statue of a soldier in a Second World War-era Red Army military uniform set against a stone background.

From 2004 onwards demands for the removal or relocation of the Bronze Soldier intensified. Also, on 22 September (the anniversary of the entry of the Red Army into Tallinn in 1944) and 9 May (Soviet Victory Day in the Second World War), crowds of mainly Russian speakers, including veterans and younger people, gathered at the monument. From 2006 onwards in particular, there began to be instances of confrontation in the vicinity of the monument, which the police were able to keep under control. On some occasions the monument was smeared with paint.

In early 2007 the Protection of War Graves Act (Sõjahaudade kaitse seadus) was enacted by the Riigikogu (the Estonian Parliament) and provided for the reburial of remains and relocation of monuments in cases where war graves were located at unsuitable sites. The Bronze Soldier was a prominent issue in the electoral campaign ahead of the parliamentary elections on 4 March 2007.

During the night of 25-26 April 2007 the monument’s defenders were removed by police from the square where the Bronze Soldier was located, and the area was cordoned off. A large tent structure was erected over the monument and the graves in preparation for the exhumation of the remains of the Soviet soldiers. By the evening of 26 April 2007 a large group of people, mostly Russian speakers, had gathered at Tõnismägi and expressed their discontent with the Government’s actions. Shouting “Shame!” and “Fascists!” they refused to comply with police orders and some attempted to break through the police cordon. The group turned more violent and started throwing stones and empty bottles at the police. The police forced the protesters out of Tõnismägi. The crowd then started committing acts of vandalism and looting shops and buildings in neighbouring streets. There were clashes with the police, who in response used truncheons, rubber bullets and plastic handcuffs. A large number of people were arrested. According to some sources approximately a third of those detained were ethnic Estonians; ethnic Estonians were also among those charged with looting and theft.

Early in the morning of 27 April 2007 the Government decided to move the monument from Tõnismägi, and a few days later it was re-erected in a military cemetery. On the evening of 27 April 2007 protesters returned to Tõnismägi. The police again cordoned off the area and carried out arrests, this time within a wider radius of the monument’s former location. Disorder and vandalism continued for a second night. Although the protests were unauthorised, there was no formal ban on visiting the city centre. Nevertheless, on 27 April 2007 the Government, through the mass media and messages sent to people’s e-mail addresses and mobile phones, asked people to stay at home and not to respond to provocation.

According to the information provided by the Government, on 26 April 2007 there were 7,000 to 8,000 people in the streets of Tallinn. On 27 April 2007 4,000 to 5,000 people took part in the riots in Tallinn, and on 28 April 2007 the number of rioters was 3,000 to 4,000. Approximately 1,500 officers participated in police operations in Tallinn, but considering the fact that at any time some were off duty, some were in reserve and some were guarding important facilities, during the peak period there could have been approximately 1,000 officers protecting public order in the streets in Tallinn.

13. According to the official sources referred to by the applicants, in total more than 1,160 people were arrested (of whom 500 were Estonian nationals, nearly 100 were Russian nationals and more than 300 were persons of undetermined citizenship). One person was stabbed to death and 156 were injured (including twenty-nine policemen). The police recorded 148 cases of vandalism. By 18 May 2007 the authorities had opened sixty-five criminal cases involving 300 suspects, mostly concerning serious breach of public order and disregard of lawful orders given by representatives of the state authority.

B. The applicants’ arrest and detention

1. The first applicant (Mr Korobov)

. The first applicant was arrested on 27 April 2007 at 11.30 p.m. in Viru Street in the city centre. He states that he was kicked to the ground by the police officers and made to lie face down on the road, where there was a lot of broken glass. He was handcuffed and taken to a storage facility at the port (D-terminal). According to the applicant, the police officers refused to tell him where he was being taken or to give any reasons for the arrest.

By 1 a.m. on 28 April 2007 about 350 people were being held at D-terminal, a storage facility which measured 19 metres by 6 metres. The applicant was told to squat against the wall.

The first applicant submitted that detainees who attempted to stand up because their legs had gone numb or as a protest were kicked to the ground, hit with rubber truncheons and beaten. According to the first applicant he was struck so hard that he fell to the floor. He claimed that he was repeatedly beaten with truncheons and kicked in the stomach by police officers wearing heavy boots.

According to a medical report issued on 2 May 2007 and submitted by the first applicant, it appears that he had a haematoma and was diagnosed with pelvic contusion in the right side of the lumbo-sacral region. A medical record was also submitted to the domestic authorities to substantiate his criminal complaint (see paragraph 45 below).

The applicant also submitted to the Court a written statement from Zh., dated 28 May 2008, concerning their arrest and detention. According to Zh., the first applicant was well known to him. Zh. confirmed that during their detention in D-terminal, the first applicant had stood up in order to stretch his legs. A plain-clothes person had told him to sit or to lie down (“Maha!” in Estonian meaning “Down!”). The first applicant inquired on what basis he was being given those orders, but instead of a response he was pushed down and kicked while down on the floor. He was kicked in the stomach.

The police kept the first applicant’s personal details and released him at 4 a.m. on 28 April 2007 without charge. According to the applicant no explanations or grounds for his detention were given, his rights were not explained to him and he was not given any official record of his detention.

2. The second applicant (Mr Kovaljov)

The second applicant, who was a minor at the time, states that he was arrested on 27 April 2007 at 7.30 p.m. in Tuukri Street. After witnessing the arrest of three individuals aged approximately 15-16 who were walking in front of him in the street, the second applicant became scared and attempted to run away but was caught by a police officer who threw him on to the ground, held him down and tied his hands with plastic straps. He was taken by bus to D-terminal without being given any reasons for his arrest or being allowed to call his mother. About three hours later he was asked how old he was, after which his handcuffs were removed. Nevertheless, it was another two hours until the police officers called his mother, who was working a night shift and therefore could not come and collect him. He was taken home at 4 a.m. on 28 April 2007.

3. The third applicant (Mr Makariev)

As submitted by the third applicant, he was arrested on 27 April 2007 at 2 a.m. on the corner of Viru Street and Pärnu Street on his way home after a date with his girlfriend. He was approached by police officers, ordered to lie on the ground and handcuffed. At 3 a.m. on 27 April 2007 he was taken to Rahumäe Detention Centre. He was searched and, allegedly without being told his rights or allowed to make a phone call, placed in a cell designated for four inmates where there were soon to be twenty.

According to a report on the detention of the third applicant as a suspect, drawn up on 27 April 2007, he had been arrested at 3 a.m. His rights and obligations were explained to him, including the right to be assisted by counsel and to make complaints, and this was confirmed by his signature. The report also contained the third applicant’s request to call his mother, as well as the statement that he was suspected of a serious breach of public order. It was further noted that there were grounds to believe that he could continue to breach public order if released.

According to a report drawn up by a senior police inspector, I.Z., who had arrested the applicant, he had been arrested because he had participated in a serious breach of public order involving active violence, and had also incited others present to commit similar offences. He had had to be arrested to prevent him from continuing with this activity.

On 27 April 2007 from 9 p.m. to 9.15 p.m. the third applicant was interviewed by a prosecutor as a suspect of a serious breach of public order. The record of the interview states that the applicant explained that he and his girlfriend had gone to see what was going on around the Bronze Soldier on 26 April 2007 at 10.30 p.m. and after that they were walking around in the city centre. He had done nothing when he was arrested on 27 April 2007 at around 3 a.m. According to the third applicant he had been questioned in Estonian without an interpreter. He was released at 10.47 p.m. on 27 April 2007. He left with a prohibition on leaving his place of residence.

On 12 October 2007 the criminal investigation in respect of the third applicant was terminated because it could not be established that an offence had been committed.

4. The fourth applicant (Mr Mihhaidarov)

According to the fourth applicant’s submissions, he was watching the protest on the evening of 27 April 2007 in Kaarli Avenue. At 10.30 p.m. the policemen started firing at the crowd with rubber bullets. One of the bullets hit the fourth applicant’s right arm. He was subsequently hit on the head with one or more truncheons, causing a serious wound. He was then hit on the knee, which caused him to fall to the ground. His arms were bound and he was thrown into a car. He was not allowed to make a phone call or told his rights or the reasons why he had been arrested. His requests for first aid were ignored. He was taken to D-terminal, where he started to lose consciousness. Only at this point was his head bandaged. When he started to feel worse, a nurse examined him and advised that he should be taken to hospital.

According to a medical report submitted to the Court he arrived at the hospital at 11.30 p.m. on 27 April 2007. He was diagnosed with a haematoma on his skull. A medical report was also submitted to the national authorities to substantiate the fourth applicant’s criminal complaint (see paragraph 45 below).

The fourth applicant submitted to the Court a written statement from N.R., dated 29 February 2008, concerning the use of force by law-enforcement officers at Kaarli Avenue. According to N.R.’s statement, on 27 April 2007 at about 8 p.m. he had gone to Kaarli Avenue in the capacity of reporter, carrying a camera and also a reporter’s card. He stayed there until 10 p.m. At about 9.45 p.m. policemen with special gear, equipped with helmets, shields and truncheons rushed at the gathered people. The people who had started to run away clashed with a “special squad” of policemen. It was the onlookers who were the first to run up to the “special squad”, who handled them roughly. The people were pushed back and shouted at “Back!” and “Down!” If they resisted, that is did not drop to the ground, they were beaten with truncheons without warning, even though they were not displaying any signs of aggression. They were kicked to the ground, their hands were bound behind their back and they were again bludgeoned with truncheons. Even those who chose to submit were bound and sometimes hit. From time to time officers of the “special squad” went for one person in a group of two or three. The fourth applicant is not mentioned in N.R.’s statements.

By a decision of 25 May 2007 the Põhja Police Prefecture, in misdemeanour proceedings, fined the fourth applicant 420 kroons (EEK, corresponding to approximately twenty-seven euros (EUR)) for a breach of public order. According to this decision it had been established that on 28 April 2007 at 11.25 p.m., the night after he had sustained the injury described above, the fourth applicant had brawled and had thrown a lit rocket in the street in the centre of Tallinn. He did not appeal against the decision.

5. The fifth applicant (Mr Petrov)

The fifth applicant stated that he had been with some friends near Harju Hill at 9.30 p.m. on 27 April 2007 when he was suddenly attacked by police officers. He was kicked to the ground and three officers started hitting him on the head with truncheons and kicking him in the head. His arm was broken as he tried to protect his head with his arm. He was taken to D-terminal and made to squat without being allowed to stand up. According to the applicant, detainees who tried to stand up were severely beaten. Although the fifth applicant complained of pain in his arm, he was not given any medical treatment. He was not told why he had been detained; nor was he allowed to make a phone call or told his rights. He was released at 5.30 a.m. the next day.

According to a medical report submitted to the Court, the fifth applicant arrived at the hospital at 12.26 p.m. on 28 April 2007 and was diagnosed with a fractured forearm. A medical report was also submitted to the national authorities to substantiate his criminal complaint (see paragraph 45 below).

The fifth applicant also submitted to the Court written statements from Z. and K., both dated 2 June 2008, describing the circumstances of his arrest and the violence used by the police officers against him.

According to Z.’s statement, on 27 April 2007 between 9.30 p.m. and 10 p.m. he had gone to Kaarli Avenue to see what was happening at the monument together with the fifth applicant and K. Z. spent some time talking to an acquaintance. When he turned to the fifth applicant, he saw a policeman attacking him from behind and twisting his arm. Fifteen seconds later two more policemen came running. They pushed the fifth applicant to the ground. One of the policemen put his foot on him and all three started to hit the fifth applicant on his head with truncheons. The fifth applicant covered his head with his arm. Z. ran away. The next day he went to a doctor with the fifth applicant.

. K. stated that he met the fifth applicant and Z. on 27 April 2007 at around 9 p.m. They went to Kaarli Avenue. He saw a policeman attacking the fifth applicant from behind. A moment later two more policemen ran up to him. He was pushed to the ground and beaten with truncheons. Then K. was also hit with a truncheon, he fell down and his hands were twisted. K. and the fifth applicant were taken to D-terminal. The fifth applicant told him on several occasions that his arm was hurting. In D-terminal, people who failed to comply with the orders to sit were beaten.

6. The sixth applicant (Mr Tarasov)

According to the sixth applicant, some time after 6 p.m. on 27 April 2007 he and his wife went to see what was happening at the Bronze Soldier and to take some photos for the family album. At 11 p.m., when the police started using truncheons, gas and grenades to disperse the crowd, the applicant and his wife decided to leave and go home. On their way home at 12.40 a.m. on 28 April 2007 they saw two men fighting on the opposite side of Väike-Karja Street (the Court notes that if the dates of the official documents referred to in paragraphs 36 to 38 below are correct, the dates mentioned in this paragraph should read 26 April and 27 April 2007 respectively). According to the sixth applicant, he stayed to stop the fight and his wife went home. The fight stopped without any intervention from the applicant and he continued on his way home. He then joined a group of four people who were asking the police to let them go home to Pärnu Street to get away from the fights and looting in Väike-Karja Street. However, the police officers ordered them to go to Väike-Karja Street. According to the applicant, approximately fifteen or twenty minutes later the policemen approached them, brandishing their truncheons, while at the same time another group of policemen began attacking them from the other side. The sixth applicant and the other people were first made to stand against the wall of a house and then tied to each other with plastic bands and handcuffed. No explanations were given as to the reasons for their arrest. Their personal details were recorded. Approximately two hours later a vehicle arrived and the applicant and the other people were taken to Rahumäe Detention Centre. According to the sixth applicant he was searched and placed in a cell which was designed for four people, together with seventeen others.

According to a report on the detention of the sixth applicant as a suspect, drawn up on 27 April 2007, he had been arrested at 1 a.m. His rights and obligations were explained to him, including the right to be assisted by counsel and the right to make complaints, which was confirmed by his signature. The report also stated that he was suspected of having committed a serious breach of public order. It was further noted that there were grounds to believe that he could continue to breach public order if released.

On 27 April 2007 from 8.15 p.m. to 8.50 p.m. the sixth applicant was interviewed by a prosecutor on suspicion of having committed a serious breach of public order. The report contains the sixth applicant’s signature to confirm that he was aware of his rights and did not need a lawyer. According to the sixth applicant, although he had been offered a State-assigned lawyer, his status was not explained to him and nor was the importance of having a lawyer. Moreover, the investigator persuaded him to refuse the lawyer’s assistance, saying that he would be acquitted in court. This is how he came to refuse the lawyer’s services.

The record of the interview states that the sixth applicant said that after his wife had gone home he had gone to see what was happening. He had been arrested at 1 a.m. on 27 April 2007, although he had committed no offences, but had merely been watching what was going on. He was then released. He left with a prohibition on leaving his place of residence.

On 1 October 2007, after interviewing the sixth applicant again, the police terminated the criminal investigation in his regard because it could not be established that an offence had been committed.

7. The seventh applicant (Mr Zatvornitski)

The seventh applicant was arrested on 28 April 2007 at 11 p.m. while he was walking to a bus stop. The applicant stated that a police officer approached him and asked to see his identity papers. When the seventh applicant produced them, the police officer asked for details of his citizenship. When the seventh applicant asked why this mattered, the policeman answered: “You will see now” and he tied the seventh applicant’s hands together with tape. He was taken in a police vehicle to a court building. There, he was made to stand against a wall and when he tried to move, police officers pushed him, causing him to hit his head on the floor and hurt it badly. He stated that the police officers hit him repeatedly on the head and one police officer kicked him in the genitals. The police officers also pulled his legs in different directions, sat on him and shouted at him. After half an hour he was taken to a cell, where he spent the night. His rights were not explained to him, nor was he allowed to make a phone call. He was released at 6 a.m. on 29 April 2007. When he asked why he had been detained the only answer he received was that he should not have left his house before 9 May (Soviet Victory Day in the Second World War).

A medical report issued at 6.45 p.m. on 29 April 2007 and submitted by the seventh applicant indicates that he had an abrasion on the right side of his face and a small abrasion on his forehead. He also complained of severe pain in his right thigh but there were no signs of any trauma. A medical report was also submitted to the domestic authorities to substantiate his criminal complaint (see paragraph 45 below).

The applicant also submitted to the Court a written statement from R., dated 29 May 2008, describing the circumstances of their arrest and detention. R. described his arrest together with the seventh applicant and their detention in a court building. He submitted that they were made to stand against a wall. When forty or fifty minutes had passed, the seventh applicant asked how long they had to stand like that. He was rudely reminded that he had been told to shut up and not to turn his head. Then he was grabbed by the legs so that he fell and hit his head. Two policemen pushed his legs apart and a third one kicked him between the legs. He cried out in pain. After some time he was taken to the basement between two policemen. He could not walk unaided because of a serious injury to his genitals.

According to a misdemeanour report drawn up by police officer J.R. on 29 April 2007, the seventh applicant had been shouting and using foul language in a public place (Tammsaare Park) and disturbing other people at 10.30 p.m. on 28 April 2007. Therefore, he had committed a breach of public order. The misdemeanour report refers to a separate report on the questioning of a witness, a police officer, and bears the seventh applicant’s signature next to his remark that he had seen the report but did not agree with the statements contained in it. The report also contains an excerpt from the statement of the rights of the person in respect of whom the proceedings are conducted, signed by the seventh applicant. The rights quoted include the right to counsel and the right to lodge complaints under the Code of Misdemeanour Procedure.

By a decision of 25 May 2007 the Põhja Police Prefecture, in misdemeanour proceedings, fined the seventh applicant EEK 420 (EUR 27) for a breach of public order. According to the decision it had been established that on 28 April 2007 at 10.30 p.m. the seventh applicant had shouted, used foul language and annoyed other people. He did not appeal against the decision.

C. The applicants’ criminal complaints

Each of the applicants made an individual criminal complaint to the public prosecutor’s office or an application to the Chancellor of Justice (Õiguskantsler) after the events described above, complaining that violence had been used against them and alleging that they had been unlawfully deprived of their liberty. The Chancellor of Justice forwarded the applications submitted to him to the public prosecutor’s office.

The first, fourth, fifth, sixth and seventh applicants also submitted medical reports to substantiate their allegations. In the first applicant’s complaints it is mentioned that he was arrested together with Zh. The fifth applicant provided the names and personal details of Z. and K., who could give statements concerning the circumstances of his arrest. In his appeal, the seventh applicant referred to R. as a witness. In addition, the fourth applicant appended a video recording of the arrests to his subsequent appeal to the Tallinn Court of Appeal (see paragraph 51 below).

The applicants’ description of the events in their complaints made to the authorities broadly correspond to their factual submissions to the Court summarised above. As to any discrepancies, the first applicant did not mention in his domestic complaints that he personally was beaten with truncheons; his account of events corresponded to that given to the Court by Zh. (see paragraph 18 above). The first applicant also described in general the situation in D-terminal. He thought that there were almost two hundred detainees and about twenty-five police officers. He described a situation where a youngster had called on people to stand up to protest against what was going on. Most of the people who could, had stood up. Then the policemen had started to beat everyone and almost twenty more policemen had rushed in. The protesters were thrown down or forced to sit. By 1 a.m. there were nearly 350 people being held in D-terminal. The seventh applicant submitted in his criminal complaint that in the basement of the court-house there had been many people, some standing facing the wall, some on the floor. He had been placed against the wall. When he had tried to stretch his legs, he was pushed to the floor. He was particularly brutally beaten. He was hit on the head, his legs were pulled apart and an officer sat on his body. All this was accompanied by terrible shouting and noise. The seventh applicant did not mention being hit in the genitals.

In their complaints and subsequent appeals the applicants claimed to be victims of a number of offences described in the Penal Code (Karistusseadustik). They notably referred to physical abuse (Article 121), torture (Article 122), unlawful deprivation of liberty (Article 136), abuse of authority (Article 291) and unlawful treatment of prisoners or persons in detention or custody (Article 324). They further mentioned Articles 3 and 5 and in some cases Articles 6 and 11 of the Convention, and cited various provisions of other international instruments.

The Põhja district prosecutor’s office declined to initiate criminal proceedings, taking the view that the applicants’ arrest and the use of force and special equipment by the police had been lawful.

The applicants appealed to the State Prosecutor’s Office, which dismissed their appeals, emphasising that criminal proceedings were commenced only when there was sufficient information to indicate that an offence had been committed. It noted that during the riot stones and bottles had been thrown at police officers, and there had been violent looting and acts of destruction, during which participants had themselves been injured. Thus, the allegations by the applicants about the circumstances in which they had sustained their injuries were not in themselves sufficient to establish a causal link between the alleged acts and the consequences. Moreover, the police officers were authorised to apply coercive measures and to detain persons suspected of committing criminal offences, but the applicants had not complied with the orders of law-enforcement officers to leave the site of an unauthorised and violent mass meeting. The measures taken in respect of them had been appropriate and no elements of an offence could be identified on the basis of the applicants’ complaints.

The applicants lodged further complaints with the Tallinn Court of Appeal against the refusal to initiate criminal proceedings. The court dismissed them, upholding the finding of the prosecutor’s office that no unequivocal link between the actions of the police officers and the injuries sustained by the applicants could be established. The court held that the use of force by the police had been lawful and there was no evidence that an excessive force had been used. In respect of the allegedly unlawful deprivation of liberty, it noted that under Article 20 of the Constitution, a person could also be deprived of his or her liberty in order to prevent an offence or to prevent his or her escape. No appeal lay against the Court of Appeal’s decision.

II. RELEVANT DOMESTIC LAW AND PRACTICE

Articles 217 and 218 of the Code of Criminal Procedure (Kriminaalmenetluse seadustik), as in force at the material time, set out the rules on detention of a suspect and read, in so far as relevant, as follows:

Article 217 - Detention of suspect

“(1) Detention of a suspect is a procedural act whereby a person is deprived of liberty for up to forty-eight hours. A report shall be prepared on a detention.

(2) A person shall be detained as a suspect if:

1. he or she is apprehended in the act of committing a criminal offence or immediately thereafter;

2. an eyewitness to a criminal offence or a victim indicates such person as the person who committed the criminal offence;

3. the evidentiary traces of a criminal offence indicate that he or she is the person who committed the criminal offence.

(3) A suspect may be detained on the basis of other information referring to a criminal offence if:

1. he or she attempts to escape;

2. he or she has not been identified;

3. he or she may continue to commit criminal offences;

4. he or she may abscond criminal proceedings or impede the criminal proceedings in any other manner ...

(7) An official of an investigative body shall explain the rights and obligations of a person detained as a suspect to the person and shall interrogate the suspect immediately pursuant to the procedure provided for in Article 75 of this Code.

(8) If a Prosecutor’s Office is convinced of the need to arrest a person, the Prosecutor’s Office shall prepare an application for an arrest warrant and, within forty-eight hours of the detention of the person as a suspect, organise the transport of the detained person to a preliminary investigation judge for the adjudication of the application.

(9) If the basis for the detention of a suspect ceases to exist in pre-trial proceedings, the suspect shall be released immediately.

(10) A person detained as a suspect is given an opportunity to notify at least one person close to him or her at his or her choice of his or her detention through a body conducting proceedings. If the notification prejudices a criminal proceeding, the opportunity to notify may be refused with the permission of the Prosecutor’s Office.”

Article 218 - Report on detention of suspect

“(1) A report on the detention of a suspect shall set out:

1. the basis for the detention and a reference to Article 217 §§ 2 or 3 of this Code;

2. the date and time of the detention;

3. the facts relating to the criminal offence of which the person is suspected and the legal assessment of the criminal offence pursuant to the relevant section, subsection or clause of the Penal Code.

4. explanation of the rights and obligations provided for in Article 34 of this Code to the suspect;

5. the names and characteristics of the objects confiscated from the suspect upon detention;

6. a description of the clothing and bodily injuries of the detained person;

7. the petitions and requests of the detained person.

(2) A report on the detention of a suspect shall be sent to a Prosecutor’s Office immediately.”

Articles 228 to 230 of the Code of Criminal Procedure provide that a complaint concerning a procedural act or order of an investigative body may be lodged with the prosecutor’s office if the person concerned finds that his or her rights have been violated by a procedural act or order of the investigative body. Further appeals may be lodged with the State Prosecutor’s Office and then a county court.

Articles 44 to 46 of the Code of Misdemeanour Procedure (Väärteomenetluse seadustik), as in force at the material time, set out the rules on detention of a suspect and read, in so far as relevant, as follows:

Article 44 - Basis for and term of detention

“(1) A person with regard to whom there is justified reason to believe that he or she has committed a misdemeanour may be detained for up to forty-eight hours if he or she:

1. attempts to escape;

2. has not been identified;

3. is likely to continue commission of misdemeanours;

4. is likely to hinder or evade the misdemeanour proceedings.

(2) Upon detention of a person:

1. he or she is taken to a police authority or the official premises of a body conducting extra-judicial proceedings who is competent to detain persons according to Article 45 of this Code or to a police detention house;

2. a statement is immediately taken from the person with regard to the commission of the misdemeanour and a report on the detention of the person or a misdemeanour report is prepared;

3. the person taken into custody is immediately taken to a county court for the hearing of the matter if the person has committed a misdemeanour and the body conducting extra-judicial proceedings deems it necessary to impose detention, and the corresponding misdemeanour report and other procedural documents have been prepared concerning the misdemeanour matter. In such case, the person subject to proceedings may lodge an objection with the court.

(3) Detention commences with effect from the moment when the person is detained. The period of detention shall be included in the term of the punishment pursuant to the procedure provided for in Article 68 § 2 of the Penal Code.

(4) If it becomes evident that the detention of a person is not justified, he or she shall be released immediately.

(5) If a person is not detained on the bases provided for in paragraph 1 of this Article, the time of interrogation of the person or performance of any other procedural act with regard to him or her is not deemed to be detention of the person.”

Article 46 - Reporting detention

“(1) A report shall be prepared on the detention of a person on the bases provided for in Article 44 § 1 of this Code. A report on the detention of the person shall not be prepared if a misdemeanour report is prepared upon detention of the person and the information prescribed in Article 69 § 4 of this Code is entered in the misdemeanour report.

(2) A report on the detention of a person shall set out:

1. the date and place of the procedural act;

2. the name of the body conducting extrajudicial proceedings and the official title, given name and surname of the official of the body who prepared the report;

3. the official title, given name and surname of the police officer who participated in the detention of the person;

4. the given name and surname of the person subject to proceedings;

5. the duration of and basis for the detention, together with a reference to Article 44 § 1 of this Code;

6. the place, date and time of the detention;

7. the legal assessment of the misdemeanour;

8. explanation of the rights and obligations of the person subject to proceedings pursuant to Article 19 of this Code;

9. a description of the clothes and footwear of the person detained and information concerning visible health damage;

10. a list of the objects seized from the person upon detention, and the characteristic features of the objects;

11. any applications and representations made by the person detained;

12. the provision of procedural law on the basis of which the procedural act was performed.

(3) A report shall be signed by the person who prepared the report and by the police arresting officer. The person subject to proceedings shall sign the report, certifying that he or she has examined the report and that the rights and obligations provided for in Article 19 of this Code have been explained to him or her. If the person subject to proceedings refuses to sign the report, an entry to that effect shall be made in it.

(4) At the request of a person subject to proceedings, at least one person of his or her choice shall be notified of his or her location. If the person detained is a minor, a parent or the guardian or curator of the minor and the social services department shall be immediately notified of the detention.”

Articles 76 to 78 of the Code of Misdemeanour Procedure set out the rules on complaints against the activities of a body conducting misdemeanour proceedings. Such complaints may be lodged with the head of the organisation in question and a further appeal may be lodged with a county court.

Article 6 § 3 (1) and (2) of the Code of Administrative Court Procedure (Halduskohtumenetluse seadustik), as in force at the material time, provided that a claim for establishment of the lawfulness or otherwise of an administrative act or measure, or for compensation for damage caused in public-law relationships, could be lodged with an administrative court. Article 9 §§ 4 and 5 set a three-year time-limit for lodging such claims.

The Police Act (Politseiseadus), as in force at the material time, provided in its relevant part:

Section 13 - Police powers

“(1) The police have the power to:

1. demand that individuals and officials observe public order and terminate violations thereof, and also to apply coercive measures prescribed by law with regard to offenders;

2. check the identity documents of individuals suspected of committing an offence, and in order to ensure safety conduct on-the-spot checks of suspected persons and their belongings;

3. draw up reports of misdemeanours, impose punishments for misdemeanours, take individuals into custody, and apply other measures prescribed by law in the fight against misdemeanour offences;

4. summon members of the public and officials to the police in criminal or administrative offence matters in police proceedings, and take individuals involved in offences to the police for immediate establishment of the facts of the offence;

5. pursuant to the procedure provided by acts and other legislation, detain or hold in custody individuals suspected of having committed criminal offences ...

7. take individuals who, due to alcohol or narcotic intoxication, might present a danger to themselves or to others, and also anyone who has violated public order, to a medical establishment or to the police for identification and, where necessary, for a misdemeanour report to be drawn up; ...”

On 11 June 2008 the Riigikogu amended the Police Act, creating a clear distinction between administrative arrest and arrest in offence proceedings (that is, criminal or misdemeanour proceedings). A limited number of grounds for the use of administrative arrest were provided and it was stipulated that administrative arrest could be challenged before the head of the police authority concerned or by means of a complaint to an administrative court. The amendments further involved regulations on the identification of members of the public, and in certain cases allowed such individuals to be taken to police premises for that purpose. Lastly, the amendments concerned more detailed rules on the use of force, and provided for grounds and procedure to be used to prohibit a person from remaining in a given place. Some rules were also introduced specifically for use in the event of mass disorder.

On 1 January 2010 a new Police and Border Guard Act (Politsei ja piirivalve seadus) entered into force, replacing the previous Police Act. In so far as is relevant to the present case, it contains elements broadly similar to the 2008 amendments to the Police Act.

In its judgment of 3 April 2006 (case no. 3-1-1-2-06), the Criminal Chamber of the Supreme Court found that taking a person to police premises did not necessarily mean that he or she was being detained within the meaning of Article 44 § 1 of the Code of Misdemeanour Procedure. Thus, under section 13(1)(4) of the Police Act the police were entitled to take individuals involved in offences to the police for immediate establishment of the facts of the offence; and section 13(1)(7) allowed individuals to be taken to the police for a misdemeanour report to be drawn up. This was affirmed by Article 44 § 5 of the Code of Misdemeanour Procedure, under which a person could also be detained on other grounds than those set out in Article 44 § 1.

In its judgment of 10 January 2008 (case no. 3-3-1-65-07), the Administrative Law Chamber of the Supreme Court dealt with a complaint concerning the use of force by police officers and the use of special equipment in the context of traffic supervision. The Supreme Court considered that stopping a vehicle and checking documents were usually acts forming part of supervisory proceedings in the course of which a police officer collected additional necessary information about the elements of an offence in order to establish whether a basis for misdemeanour proceedings existed. The Supreme Court held that the use of force and special equipment within supervisory proceedings could be challenged before an administrative court, whereas in the event of complaints concerning measures applied in misdemeanour proceedings a county court had jurisdiction over the matter, pursuant to Articles 76 to 80 of the Code of Misdemeanour Procedure.

The Supreme Court further noted that detention of a person on the basis of Article 44 § 1 (2) of the Code of Misdemeanour Procedure for the purposes of his or her identification, which also involved taking the person to police premises, could not be considered a supervisory measure. Under the law in force it was only possible to detain a person if offence proceedings had been initiated. For the purposes of classifying detention as the first measure applied in misdemeanour proceedings it was irrelevant whether the measure had been taken in full compliance with the rules of misdemeanour proceedings.

III. FINDINGS OF THE EUROPEAN COMMITTEE FOR THE PREVENTION OF TORTURE AND INHUMAN AND DEGRADING TREATMENT OR PUNISHMENT (CPT)

In May 2007 the CPT made a visit to Estonia. On 19 April 2011 it published a report of its visit (CPT/Inf (2011) 15), which contains the following findings:

“13. Shortly before the visit (in the night of 26 to 27 April 2007), mass demonstrations had taken place in Tallinn, during which more than 1,000 persons had been apprehended by the police. The delegation paid particular attention to the manner in which these persons had been treated and the conditions under which they had been detained by the police. From the information gathered, it appears that, once apprehended, the persons concerned had been transported to various detention facilities (police stations, arrest houses, court holding cells). However, as the capacity of the existing detention facilities was insufficient, the majority of these persons had been taken to a customs warehouse situated at Terminal D in the port of Tallinn; following an identity check and questioning by the police, they had then either been released or transferred to a regular place of detention. ...

14. With the notable exception of the April 2007 events, hardly any allegations of physical ill-treatment by the police were received.

As regards the above-mentioned events, the delegation received numerous allegations of ill-treatment and/or excessive use of force by the police. These allegations mainly concerned punches, kicks and baton blows to the head, back and legs, when the persons concerned had been brought under control. Furthermore, a number of detained persons complained of ill-treatment (kicks or baton blows) on arrival at the place of detention and until they were placed in a cell. Some claimed that were obliged to remain immobile for long periods of time, standing facing the wall or kneeling, while waiting to be placed in a cell (for example, three hours standing facing a wall and ninety minutes kneeling); in some cases, movements or speaking were allegedly punished by a blow. Some allegations were also received of very tight handcuffing for lengthy periods (from the time of apprehension to that of being placed in the cell), rude behaviour and insults. Most of the above-mentioned allegations concerned members of the special forces, some of whom were masked during the intervention.

The CPT is aware of the difficulties with which any police service is confronted during such extraordinary events. However, the prohibition of torture and inhuman or degrading treatment or punishment is absolute, and no exceptional circumstances may justify a derogation from that principle.

The CPT recommends that all police officers, in particular members of special intervention groups, be reminded that all forms of ill-treatment of persons deprived of their liberty (including verbal abuse) are not acceptable in whatever circumstances and will be punished accordingly. Police officers should also be reminded that the force used when performing their duties should be no more than is strictly necessary and that, once persons have been brought under control, there can be no justification for striking them.

Further, police officers must be trained in preventing and minimising violence in the context of an apprehension. For cases in which the use of force nevertheless becomes necessary, they need to be able to apply professional techniques which minimise any risk of harm to the persons whom they are seeking to apprehend.

15. The CPT would also like to express its misgivings about the practice of law enforcement officials wearing masks when apprehending persons (as was apparently the case during the above-mentioned events) since this will hamper the identification of those responsible if and when instances of ill-treatment arise. The Committee considers that only exceptional circumstances can justify measures to conceal the identity of law enforcement officials carrying out their duties. Where such measures are applied, appropriate safeguards must be in place in order to ensure that the officials concerned are accountable for their actions (e.g. by means of a clearly visible number on the uniform).

16. In their letter of 12 September 2007, the Estonian authorities informed the CPT that eleven criminal investigations into alleged cases of police ill-treatment had been initiated in connection with the April 2007 events, most of them on the basis of Sections 121 (physical abuse) and 291 (abuse of authority) of the Penal Code. In four cases, these investigations had been discontinued, while, in all other cases, they were still pending ...

31. The information gathered during the visit demonstrated that many of the persons detained by the police in connection with the April 2007 events in Tallinn were not granted the fundamental safeguards set out in paragraph 18 from the outset of their deprivation of liberty.

Many of the persons concerned were apparently allowed to contact a family member or another person of their choice and to be assisted by a lawyer only when they were brought before a judge. Further, a number of detained persons claimed that their requests to see a doctor whilst in police custody had been denied, even when they displayed visible injuries.

The CPT would like to stress that, even in exceptional circumstances such as those of the April 2007 events, it is incumbent on the authorities to make every effort to guarantee that persons detained by the police enjoy the above-mentioned fundamental safeguards as from the very outset of their deprivation of liberty.

32. The examination of medical files at Tartu Prison revealed that injuries displayed by prisoners detained in connection with the April 2007 events had not always been recorded in detail upon admission to the prison. Further, the medical records often contained little or no information about the statements made by the prisoners concerned and never included the doctor’s conclusion as to the possible causes of the injuries observed ...”

In their responses to the CPT report, published on 19 April 2011 (CPT/Inf (2011) 16), the Estonian Government submitted the following, in so far as relevant:

“Eight criminal cases were launched against officers in connection with the April events. Of these, six were under § 291 of the Penal Code (abuse of authority), one under Penal Code § 201 (2) 3) (embezzlement by an official) and one under Penal Code § 121 (physical abuse). At present, the investigations of all eight cases have terminated. Six cases were terminated due to lack of evidence and two cases were terminated due to lack of necessary and objective elements of a criminal offence. No disciplinary investigations were launched in connection with the April civil unrest.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

The first, fourth, fifth and seventh applicants complained that they had been ill-treated during their arrest and detention, and that no effective investigation had been carried out in respect of their complaints. They relied on Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Government contested that argument.

A. The parties’ submissions

1. The applicants

With regard to the issue of whether domestic remedies had been exhausted, the applicants submitted that they had applied both to the Chancellor of Justice and the public prosecutor’s office. The Chancellor of Justice, who carried out the functions of ombudsman and also acted as the national preventive mechanism under the Optional Protocol to the United Nations Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, had also sent the applicants’ applications to the prosecutor’s office, as the applicants had done themselves. The applicants considered that it would be strange indeed to suggest that they should have had better knowledge and understanding of the law than the prosecutor’s office or the Chancellor of Justice.

The applicants considered that their ill-treatment by the authorities during their arrest and detention had constituted inhuman and degrading treatment which in certain instances amounted to torture. The Government had failed to specify in what respect exactly the applicants’ behaviour had not been law-abiding. The applicants contended that none of them had offered any resistance towards the police at any time while being apprehended or during their detention. In such circumstances the force used had been excessive and unnecessary.

In respect of the first applicant, it was emphasised that he had been beaten in D-terminal while he was handcuffed.

As regards the fourth applicant, the Government’s argument that he could have received his head injury at the hands of other rioters was rejected by the applicants. There had been no public disorder at Kaarli Avenue before the police started their operation. It was highly unlikely that a person would have been walking down the avenue with a head injury. The nature of his injury was commensurate with his allegation that the police had hit him on his head with a rubber baton.

In respect of the fifth applicant, it was argued that he had not been given a chance to comply with a specific order voluntarily. Even if the use of special equipment during arrest could be found lawful, kicking the fifth applicant when he was lying on the ground could hardly be found to be a lawful and proportionate measure. It was highly unlikely that the fifth applicant had been walking in the park with a broken arm.

Lastly, in respect of the seventh applicant, the Government’s suggestion that he could have received injuries at the hands of other rioters was also rejected. He had not taken part in the riots, and the park where he had been apprehended was deserted at the time. It was reasserted that he had been beaten while in detention.

In respect of all the applicants mentioned above reference was made to witness statements submitted to the Court (see paragraphs 18, 28, 32 to 34 and 42 above) all of which stated that the applicants had been beaten or that force had been used against them.

The applicants further argued that their complaints had been dismissed without any investigation of the allegations made, and that the authorities had failed in their duty to carry out an effective investigation as required under Article 3 of the Convention.

2. The Government

The Government considered that the applicants had not exhausted domestic remedies. Making reference to the Supreme Court’s case-law (see paragraph 61 above), the Government argued that the applicants could have contested the use of force by the police, either before administrative courts (the first, fourth and fifth applicants, in respect of whom no offence proceedings had been initiated) or in complaints procedures within misdemeanour proceedings (the seventh applicant). Criminal proceedings against the police, which the applicants had sought, did not have the same essential objective, and were therefore not alternative remedies, as means of establishing the lawfulness or otherwise of measures taken, with the objective of satisfaction of claims for damages. The fact that the authorities had found no grounds for initiating criminal proceedings against the police officers did not mean that the applicants could not have sought redress through the other proceedings referred to. Redress by that means did not presuppose the conviction of representatives of State authority of a criminal offence.

The Government maintained that the applicants had not been subjected to inhuman or degrading treatment. They admitted that there had been no prohibition on visiting central Tallinn, but pointed out that the authorities had used various channels to call for civil obedience by the public, and to appeal to them to stay at home and not to respond to provocations. Despite that, the first, fourth and fifth applicants had been arrested in the second night of the disorder and the seventh applicant during the third night of the disorder, late in the evening or at night in the middle of the “hottest” action. In a situation in which rioting, destruction and violence were taking place in the centre of Tallinn, accompanied by attacks against the police, the public interest in combating offences and ending the mass disorder was obvious and the police had been entitled in that situation to use special equipment to these ends. The domestic authorities had established that the applicants’ behaviour had not been law-abiding and they had not complied with lawful orders by the police to leave the site of an unauthorised and violent mass gathering. The Government emphasised that considering the extent of the disorder, stabilising the situation had not been possible without detaining individuals for identification and removing them from the site of the mass gathering. The Government considered that neither handcuffing the applicants nor having recourse to physical force, which had been made absolutely necessary by their own conduct, had given rise to an issue under Article 3. There had been no systematic humiliation of individuals in places of detention. The applicants’ detention had been of short duration and had not exceeded the limit which a person was required to tolerate in situations of mass disorder. The Government also noted that the ambulance service had been constantly present in places of detention, and that where needed medical care had been provided immediately.

In respect of the applicants’ injuries, the Government considered that their injuries, however they had been caused, had been slight and minor, and that the evidence submitted by the applicants had not shown that the police had been guilty of causing these injuries. The Government argued that the witness statements relating to the circumstances of the arrest and detention and the force used by the police officers in respect of the applicants had not been submitted to the Estonian authorities during the proceedings concerning the applicants’ complaints. Thus, as the Estonian courts had not been able to assess this evidence, it was to be disregarded.

The Government’s arguments in respect of the individual applicants can be summarised as follows.

As regards the first applicant, the Government noted that he had only been examined by a doctor five days after the alleged injury. The Government considered that the period between his arrest and detention, on the one hand, and recording of the injury, on the other, was so long that the injury could not in any way be linked to the night of 27 April 2007, let alone to police activities during that night.

In respect of the fourth applicant, the Government pointed out that he had submitted that he was already not feeling well when he was arrested in Kaarli Avenue, the hot spot of the conflict, and therefore it was clear that the police had not caused him any injuries during his one-hour detention. No link had been shown between the fourth applicant’s detention and his injury. He was already at the hospital one hour after his arrest, prior to which he had been examined by a nurse and his head had been bandaged. Considering the distances between Kaarli Avenue, the detention facility in the harbour area and the hospital, it could be said that he had received immediate medical assistance for his injury. In the Government’s opinion the minor nature of his injury and the maliciousness of his claims was proved by the fact that the very next evening the fourth applicant committed a misdemeanour by violating public order in the course of the mass disorder (see paragraph 29 above).

As regards the fifth applicant, the Government argued that he had also been arrested near the hot spot of the disorder, by the tennis courts on Harju Hill, close to the former site of the relocated Bronze Soldier. The Government submitted that there was no evidence for the applicant’s claim that his injury had been caused by a conflict with the police. The Government argued that the fifth applicant’s injury may have been caused by other rioters during the mass disorder.

Lastly, in respect of the seventh applicant, the Government submitted that he had only been diagnosed with minor abrasions. In his case, the Government stressed that immediately prior to his detention he had committed a misdemeanour in Tammsaare Park by brawling and annoying others. Thus, the small abrasions could have been sustained during any encounter with others, and it was not proved that the injuries were caused by the police.

In sum, the Government concluded that in the present case it was not possible to affirm with certainty that the applicants’ health problems were linked to police actions. In the case of the first applicant it was not known at all when the injury had been caused; the other applicants had not necessarily sustained their minor injuries during the detention: they could also have been caused by other rioters during the disorder. When during the riots thousands of people were gathered in a small area and were behaving aggressively, it was extremely likely that they would hurt each other. Therefore, there was no proof that there had been inhuman or degrading treatment of the applicants by the police. In addition, none of the applicants had a health problem qualifying as inhuman or degrading treatment. The fifth applicant’s fractured arm had been the only somewhat more serious injury, but as no proof of police responsibility for the injury had been found, this could not be considered a violation of Article 3 by the State.

As to the question whether the authorities had conducted a thorough and effective investigation, the Government were of the opinion that Article 3 had not been breached. The Government argued that the applicants’ criminal complaints had been assessed by the Põhja district prosecutor’s office, the State Prosecutor’s Office and the Tallinn Court of Appeal, all of whom had reached the same conclusion, that in none of the cases had there been grounds to initiate criminal proceedings against the police. The Government argued that before initiating criminal proceedings a body conducting pre-judicial proceedings or a prosecutor had to consider whether the alleged offence could be proved; mere submission of a criminal complaint to an investigating authority and accusing a person of a criminal offence was not a sufficient reason for criminal proceedings to be initiated. The Government also referred to the Court’s finding in its partial decision in the present case (see Korobov and Others v. Estonia (dec.), no. 10195/08, 14 September 2010) that there had been no procedural violation of Article 3 in respect of the second, third and sixth applicants. The Government considered that the same conclusion applied to the first, fourth, fifth and seventh applicants.

B. The third-party intervener’s arguments

The Russian Government submitted that before the events of April 2007 they had repeatedly called on the Estonian authorities not to relocate the Bronze Soldier monument, but to no avail. They referred in this context to Article 34 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, and argued that there had been no “overriding public necessity” to relocate the monument.

In connection with the applicants’ complaints under Article 3 of the Convention, the Russian Government considered that disproportionate force had been used by the Estonian law-enforcement agencies. They also referred to the findings of the CPT, which in their opinion revealed clear signs of violations of the guarantees enshrined in Articles 3 and 5 of the Convention, and considered that the applicants’ allegations did not seem unreal or unsubstantiated in this context.

C. The Court’s assessment

1. Admissibility

The Court reiterates that the purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to it (see, inter alia, Civet v. France [GC], no. 29340/95, § 41, ECHR 1999-VI). Whereas Article 35 § 1 of the Convention must be applied with some degree of flexibility and without excessive formalism, it does not require merely that applications should be made to the appropriate domestic courts and that use should be made of effective remedies designed to challenge decisions already given. It normally also requires that complaints intended to be brought subsequently before the Court should have been made to those same courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see, among other authorities, Cardot v. France, 19 March 1991, § 34, Series A no. 200; Elçi and Others v. Turkey, nos. 23145/93 and 25091/94, §§ 604 and 605, 13 November 2003; and Gäfgen v. Germany [GC], no. 22978/05, § 142, ECHR 2010).

88. The Court further notes that the only remedies which an applicant is required to use are those that relate to the breaches alleged and which are likely to be effective and sufficient. Moreover, under the established case-law, when a remedy has been pursued, use of another remedy which has essentially the same objective is not required (see Kozacıoğlu v. Turkey [GC], no. 2334/03, § 40, 19 February 2009; Micallef v. Malta [GC], no. 17056/06, § 58, ECHR 2009; Aquilina v. Malta [GC], no. 25642/94, § 39, ECHR 1999-III; and Riad and Idiab v. Belgium, nos. 29787/03 and 29810/03, § 84, 24 January 2008).

The Court notes that the applicants’ complaints of ill-treatment were lodged, either through the Chancellor of Justice or directly, with the prosecuting authorities. The applicants argued that they had been victims of physical violence and unlawful deprivation of liberty. In their complaints or subsequent appeals they referred to pertinent provisions of the Penal Code (see paragraph 48 above). Having regard to the fact that physical abuse, torture, abuse of authority and unlawful treatment of prisoners or persons in detention or custody indeed constituted criminal offences under the Penal Code, the Court does not consider the applicants’ choice of procedure in the circumstances of the present case unreasonable, regard also being had to the fact that in some cases the applicants’ complaints were forwarded to the prosecuting authorities by the Chancellor of Justice. The applicants thereby sought the punishment of those they believed to be guilty of criminal conduct towards them. In the Court’s view the applicants were not required to embark on another set of proceedings before the administrative courts which served substantially the same purpose. It is not the Court’s task to assess in the abstract whether administrative court proceedings would have offered them better prospects of success. The Court finds that, given the nature of the applicants’ complaints, it cannot be said that they chose an inappropriate remedy (see also Julin v. Estonia, nos. 16563/08, 40841/08, 8192/10 and 18656/10, § 115, 29 May 2012). The Government’s plea of non-exhaustion of domestic remedies must therefore be rejected so far as the complaint about ill-treatment is concerned.

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.

2. Merits

(a) Alleged ill-treatment

(i) General principles

As the Court has stated on many occasions, Article 3 of the Convention enshrines one of the most fundamental values of democratic societies. It prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s conduct (see Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV, and Chahal v. the United Kingdom, 15 November 1996, § 79, Reports of Judgments and Decisions 1996-V).

Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and health of the victim (see, among other authorities, Peers v. Greece, no. 28524/95, § 67, ECHR 2001-III, and Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25).

Thus, treatment has been held by the Court to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering, and also “degrading” because it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them (see, for example, Kudła v. Poland [GC], no. 30210/96, § 92, ECHR 2000-XI, and Van der Ven v. the Netherlands, no. 50901/99, § 48, ECHR 2003-II). For punishment or treatment to be “inhuman” or “degrading”, the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment (see, for example, V. v. the United Kingdom [GC], no. 24888/94, § 71, ECHR 1999-IX, and Van der Ven, loc. cit.).

The use of handcuffs or other instruments of restraint does not normally give rise to an issue under Article 3 of the Convention where the measure has been imposed in connection with lawful detention and does not entail the use of force, or public exposure, exceeding what is reasonably considered necessary. In this regard, it is important to consider, for instance, the danger of the person’s absconding or causing injury or damage (see, among other authorities and mutatis mutandis, Raninen v. Finland, 16 December 1997, § 56, Reports 1997-VIII; Mathew v. the Netherlands, no. 24919/03, § 180, ECHR 2005-IX; and Kuzmenko v. Russia, no. 18541/04, § 45, 21 December 2010).

The Court reiterates that allegations of ill-treatment must be supported by appropriate evidence. In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” (see Ireland v. the United Kingdom, cited above, § 161). However, 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 under 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 Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII).

Where domestic proceedings have taken place, it is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for those courts to assess the evidence before them (see Klaas v. Germany, 22 September 1993, § 29, Series A no. 269). Although the Court is not bound by the findings of domestic courts, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by those courts (see Matko v. Slovenia, no. 43393/98, § 100, 2 November 2006). Where allegations are made under Article 3 of the Convention, however, the Court must apply particularly thorough scrutiny (see, mutatis mutandis, Ribitsch v. Austria, 4 December 1995, § 32, Series A no. 336).

The Court is mindful of the potential for violence that exists in prison institutions and of the fact that disobedience by detainees may quickly degenerate into a riot (see Gömi and Others v. Turkey, no. 35962/97, § 77, 21 December 2006). The Court accepts that the use of force may be necessary on occasion to ensure prison security, and to maintain order or prevent crime in detention facilities. Nevertheless, such force may be used only if unavoidable, and must not be excessive (see Ivan Vasilev v. Bulgaria, no. 48130/99, § 63, 12 April 2007, with further references). 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 (see, among others, Ribitsch, cited above, § 38; Vladimir Romanov v. Russia, no. 41461/02, § 63, 24 July 2008; and Sharomov v. Russia, no. 8927/02, § 27, 15 January 2009).

(ii) Application of the principles to the present case

The Court notes at the outset that the events giving rise to the present case concern a particular and unprecedented situation of mass riots that lasted for several days in the city centre of Tallinn. There were up to 8,000 people in the streets and a large number of persons took part in acts of vandalism and looting. There were around 1,000 police officers on duty to perform various tasks such as cordoning off the site of the monument, quelling the riot, apprehending those suspected of breach of public order or other criminal acts, taking the arrested persons to the (at times makeshift) places of detention and keeping order in these facilities.

Thus, the situation was quite different from that in cases where the Court has dealt with complaints concerning injuries sustained while in detention or otherwise under the control of the police, in which cases the burden of proof clearly rests on the authorities to provide a satisfactory and convincing explanation as to the cause of the injuries (see, among many authorities, Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999-V; Salman, cited above, § 100; and Mammadov v. Azerbaijan, no. 34445/04, § 60, 11 January 2007).

The present case is furthermore different from those cases where it was not disputed that the applicants’ injuries resulted from the use of force by agents of the State in the course of a specific security operation involving either persons resisting arrest, disobedient prison inmates or unauthorised demonstrators. In many such cases, the Court has held that the burden of proof rested on the Government to demonstrate solely that such use of force was not excessive (see Muradova v. Azerbaijan, no. 22684/05, § 107, 2 April 2009, with further references to the cases of Zelilof v. Greece, no. 17060/03, §§ 46-47, 24 May 2007; Kurnaz and Others v. Turkey, no. 36672/97, §§ 53-55, 24 July 2007; Vladimir Romanov, cited above, §§ 60-61; Saya and Others v. Turkey, no. 4327/02, § 20, 7 October 2008; Balçık and Others v. Turkey, no. 25/02, §§ 30-31, 29 November 2007; and Matko, cited above, §§ 101-104). In the present case the very fact that the injuries resulted from the use of force by the police is in dispute.

101. However, the Court considers that the applicants have been able to produce sufficient evidence supporting their allegation that their injuries were caused by the use of a certain measure of force by police officers. In making this conclusion the Court relies on the medical evidence produced by the applicants and on the witness statements supporting the first, fifth and seventh applicants’ submissions. The Court notes that these statements were only submitted to the Court and not to the domestic authorities, who thus were not given the opportunity to test this evidence. The statements in question were drawn up around a year after the events complained of, which might be seen as somewhat diminishing their probative value. On the other hand, the Court notes that the Government have not provided it with sufficiently specific alternative evidence as to the circumstances in which the applicants sustained injuries. The Court also notes in this context that although the applicants mentioned the witnesses in question one way or another in their criminal complaints (see paragraph 46 above), the authorities failed to avail themselves of the opportunity to obtain any evidence from them (in respect of the Court’s findings on the authorities’ procedural obligation under Article 3 to carry out an effective investigation, see paragraphs 115 to 117 below).

. As regards the fourth applicant, in whose respect no direct eyewitness statements have been presented, the Court nevertheless notes that in his submissions his arrest involving the use of force took place in the vicinity of the location of the fifth applicant’s arrest (Harju Hill being adjacent to Kaarli Avenue) and approximately at the same time. The general description of the situation given by witness N.R. also allows the conclusion to be drawn that it was at that time that the police forces started to advance along Kaarli Avenue from the location of the monument at Tõnismägi towards Vabaduse Square. Thus, it appears probable that the fourth applicant’s injuries were also sustained in this context.

. Consequently, the Court needs to examine whether or not the force used in respect of the individual applicants was excessive. Before turning to the specific evidence, to the extent it is available to it, the Court must also have regard to the general background of the events.

The Court notes that the large-scale disturbances in the centre of Tallinn started in the evening of 26 April 2007 and continued on 27 April 2007 and 28 April 2007. The major riots took place late in the evening and at night. They involved assaults against police officers, vandalising public and private property and looting businesses. Conflicts also occurred between private individuals present in the city centre - there were fights in the streets and one person was stabbed to death (see, respectively, paragraphs 35 and 13 above). The authorities resorted to the use of force in order to quell the disorder. The Court further observes that while there was no formal ban on visiting the city centre, the authorities widely disseminated their appeal to the people to stay at home, in an apparent attempt to put an end to the disorder and calm down the situation. The events were also widely covered by the media, so that at least during the second and third nights of the riots hardly anyone could be seen as having been taken by surprise by the rioting situation and the force used in response by the law-enforcement agencies. It is against this background that the Court will proceed to assess the use of force in respect of the individual applicants. It observes that the first, fourth and fifth applicants were apprehended during the evening of 27 April 2007, which was the second night of the riots, whereas the seventh applicant was arrested late in the evening of 28 April 2007, which was the third night of the riots.

The Court notes that the first applicant submitted that he had been kicked to the ground while being apprehended, and that while in detention in D-terminal he had been struck so hard that he had fallen to the ground; he had also been beaten with truncheons and kicked in the stomach by police officers wearing heavy boots (see paragraphs 14 to 16 above). The Court further notes that according to the statements of Zh., the first applicant’s friend together with whom he was arrested and detained, the first applicant had been told to squat. It appears that it was only when he had failed to comply with this order and had challenged the authority of the person in charge that he was forced to the floor (see paragraph 18 above). The Court observes, in this context, that the number of persons arrested over the three days of the riots was 1,160 (see paragraph 13 above) surpassing the number of police officers on duty (see paragraph 12 above). The forces tasked with keeping order in the temporary detention facilities were scarce. Indeed, according to the first applicant’s submissions in his complaints to the domestic authorities, there were 200, and later 350, detainees in the D-terminal warehouse, with just twenty-five police officers keeping order (see paragraph 47 above). When the detainees, who outnumbered law-enforcement officers tenfold, made an attempt at collective disobedience, additional forces were brought in to put an end to the rebellious behaviour and force the detainees down (ibid., see also K.’s statements in paragraph 34 above). The Court also notes that in his domestic statements the first applicant did not mention being personally hit with truncheons; nor was this alleged in Zh.’s statements to the Court (see paragraph 18 above). As regards the medical evidence, the Court notes that according to the medical report the first applicant had a haematoma and was diagnosed with pelvic contusion in the right side of the lumbo-sacral region (see paragraph 17 above). The Court observes that no other bruises or further injuries that would match the applicant’s description of being beaten and kicked were described in the medical report. Rather, it would appear that the applicant’s injuries resulted from him being forced on to the floor following his unruly behaviour. In these circumstances the Court is unable to conclude that excessive force was used in respect of the first applicant.

. The Court further observes that it can be understood from the fourth applicant’s submissions that he had sustained injuries in Kaarli Avenue when the police compelled people who had gathered there to move further away from the site of the monument. According to the fourth applicant his arm had been hit by a rubber bullet and he had been hit on the head with a truncheon and also hit on the knee (see paragraph 26 above). It observes that the applicant’s medical examination in hospital within the hour identified only a haematoma on his skull (see paragraph 27 above). There is no information concerning injuries caused by the applicant’s allegedly being hit by a rubber bullet and struck on the knee. Furthermore, the applicant’s allegations concerning the use of force against him are not supported by any witness statements or other pertinent evidence. The written statements of N.R., submitted to the Court, present a general description of the situation in Kaarli Avenue at the material time, without personally mentioning the fourth applicant. According to N.R., the law-enforcement officers had ordered the people to step back or lie down and force was used against those who resisted. In N.R.’s submissions, in some cases people were hit while on the ground and even if already bound (see paragraph 28 above). However, the Court notes that the fourth applicant did not allege that he was hit when he had already been immobilised. The fourth applicant’s submissions, considered in the context of the statements of N.R. about the general situation, do not allow the conclusion to be drawn that the force used in respect of the fourth applicant was excessive. The Court has also had regard to the Government’s submissions, which state that the fourth applicant was fined in misdemeanour proceedings for a breach of public order committed late in the evening of the following day (28 April 2007, the third day of the riots, see paragraph 29 above). In the Court’s opinion the latter fact is indicative of the relative lack of seriousness of the fourth applicant’s injury, as well as of his behaviour in general during the nights of rioting. Against this background the Court is unable to conclude that excessive force was used against the fourth applicant.

Regarding the fifth applicant, the Court notes that he appears to have sustained the injuries at approximately the same location and time as the fourth applicant (see paragraphs 102 and 106 above). In his submissions he had been kicked to the ground and hit on the head with truncheons and also kicked in the head (see paragraph 30 above). According to him his arm was broken when he tried to protect his head. The Court observes that neither Z. nor K. mentioned the fifth applicant having been kicked in the head although both of them confirmed that he had been hit on the head with truncheons, having already been forced to the ground (see paragraphs 33 and 34 above). According to the medical certificate, the fifth applicant was diagnosed with a fractured forearm (see paragraph 31 above). The medical certificate does not mention any other injuries he could have sustained, whether to his head or other parts of his body, when he was allegedly hit with truncheons and kicked. Thus, the Court cannot but conclude that the fifth applicant’s arm was broken as a result of the use of force by the law- enforcement officers. The Court further considers that the probable circumstances of the fifth applicant’s sustaining the injury in question do not appear to have justified the extent of the force used. Even if it may have been necessary to continue the use of force in respect of individuals already forced to the ground in order to immobilise and handcuff them, the Court notes that in the present instance three officers appear to have been engaged in taking control over the fifth applicant. This predominance appears to have been sufficient to overpower the fifth applicant’s resistance, if any, without having recourse to such a degree of force as was apparently used in the present case.

On the basis of the above considerations, the Court concludes that the force used in respect of the fifth applicant by the law-enforcement officers was excessive. At the same time, the Court finds that no such conclusion can be made in respect of the first, fourth and seventh applicants.

Accordingly there has been a violation of Article 3 under its substantive limb in respect of the fifth applicant and no violation of that provision in respect of the first, fourth and seventh applicants.

(b) Alleged inadequacy of the investigation

(i) General principles

The Court reiterates that where an individual raises an arguable claim that he has been seriously ill-treated by agents of the State, in breach of Article 3, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation (see, among others, Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports 1998-VIII).

An obligation to investigate “is not an obligation of result, but of means”: not every investigation should necessarily come to a conclusion which coincides with the applicant’s account of events. However, it should in principle be capable of leading to the establishment of the facts of the case and, if the allegations prove to be true, to the identification and punishment of those responsible (see Mikheyev v. Russia, no. 77617/01, § 107, 26 January 2006, with further references).

Any investigation of serious allegations of ill-treatment must be thorough. That means that the authorities must make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis for their decisions (see Assenov, cited above, § 103 et seq.). They must take all reasonable steps available to them to secure evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence and so on (see Tanrıkulu v. Turkey [GC], no. 23763/94, § 104 et seq., ECHR 1999-IV, and Gül v. Turkey, no. 22676/93, § 89, 14 December 2000). Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of those responsible will risk falling foul of the applicable standard (see, among many authorities, Mikheyev, cited above, § 108).

(ii) Application of the principles to the present case

The Court has taken note of the Government’s reference to the Court’s finding in its partial decision in the present case (see Korobov, cited above) where it shared the domestic authorities’ view that there had been no need to initiate criminal proceedings in respect of the second, third and sixth applicants’ complaints, since no arguable claim of ill-treatment had been put forward by them. The Government considered that the same conclusion applied to the first, fourth, fifth and seventh applicants. However, the Court notes that the seriousness of the different applicants’ complaints in the present case differed. While the second, third and sixth applicants’ complaint was found not to have been “arguable”, the Court found, having assessed the applicants’ submissions and the available evidence, that the first, fourth, fifth and seventh applicants had made an arguable complaint under Article 3 of the Convention, and their complaints were declared admissible. Therefore, the Court is called to examine whether the authorities fulfilled their procedural obligation to carry out an effective investigation of these applicants’ allegations.

The Court observes that the applicants’ complaints about their ill-treatment were received, either directly or through the office of the Chancellor of Justice, by the Põhja district prosecutor’s office. In addition, the first, fourth, fifth and seventh applicants submitted medical reports to substantiate their allegations. The fifth applicant also provided the names and personal details of two individuals who had witnessed his arrest, and the seventh applicant identified one person as a witness. The district prosecutor’s office declined to initiate criminal proceedings, and the applicants’ appeals against these decisions were dismissed by the State Prosecutor’s Office and the Tallinn Court of Appeal. The authorities found that there was not sufficient evidence to support the applicants’ allegations, and that the use of force by the police officers had been lawful. The Court notes, however, that the authorities made no attempt to obtain any additional evidence, be it by questioning the applicants in person in order to obtain more detailed information about their version of the events in addition to their written complaints, or by interviewing the witnesses referred to by the fifth and seventh applicants. Nor does it appear that the authorities sought any additional information about the events complained of from other possible sources, such as police files or any photos or video recordings of the events. The Court is aware of the difficulties involved in quelling large-scale violence and investigating alleged abuses of power in such circumstances. However, the Court is not convinced that the authorities made every reasonable effort to collect evidence in the present case. The Court notes in this context that the first and seventh applicants also complained about their treatment in detention, that is in circumstances where an attempt to identify potential witnesses or to obtain any recordings of security cameras that might have been present in the premises concerned would have had more prospects of success, compared to the events that had taken place during the clashes in the streets. Furthermore, in the case of the fourth applicant, the medical staff who gave him first aid and transported him to hospital could potentially have served as witnesses. Indeed, it would appear that the authorities’ response to the applicants’ complaints was limited to stating that there was not sufficient evidence to support the applicants’ allegations, and no further investigation was undertaken at all.

The Court therefore concludes that the national authorities failed to carry out an effective and independent investigation of the first, fourth, fifth and seventh applicants’ allegations of ill-treatment.

There has accordingly been a procedural violation of Article 3 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

All seven applicants complained that their deprivation of liberty had been unlawful and arbitrary. They relied on Article 5 § 1 of the Convention, which, in so far as relevant, reads as follows:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ...

(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ...”

The Government contested that argument.

A. The parties’ submissions

1. The applicants

The applicants argued that domestic remedies had been exhausted: they had made complaints to the Chancellor of Justice and the public prosecutor’s office, and had not been required to pursue other remedies which had essentially the same objective (see paragraph 67 above). Moreover, the first, second, fourth and fifth applicants’ status had not been clear during the time of their detention, nor had been its legal basis. No proceedings had been initiated in respect of them and no procedural documents, which could have been challenged, had been prepared either.

As to the substance, the applicants argued that none of them had taken part in the public gatherings at the monument which were dispersed by the police in the evenings of 26 and 27 April 2007. They submitted that during the events of 26-28 April 2007 there had been no prohibition on visiting the city centre. On each of these days offices and shops had been open during opening hours, and in the evenings restaurants and bars had been open. No state of emergency had been declared. The applicants maintained that they had been detained solely on the basis that they had been in the city centre at the time when the police operation had been taken place. As they belonged to the Russian-speaking minority, they were automatically part of a group at risk of being detained. In the applicants’ submission the police had sealed off several blocks (quarters) of the city centre and conducted mass arrests of people who were inside this area. There had been no opportunity to leave the area which had been sealed off, as the police had let almost no one out, and did not accept any explanations from the people inside the area.

In respect of individual applicants, it was submitted that the fourth, fifth and seventh applicants had been arrested in a park, where no riots whatsoever had taken place. Moreover, the seventh applicant had been arrested on 28 April 2007, when practically no rioting had been taking place.

The applicants argued that their deprivation of liberty could not be justified under any of the grounds provided in Article 5 § 1 of the Convention. In particular, the State could not rely on Article 5 § 1 (c) because there were no grounds for their detention; at no point in time during their arrest and detention had their rights and obligations been explained to them; and none of the applicants had been given an opportunity to notify someone of their detention. Therefore, their arrest and detention had automatically been contrary to Article 5.

Further, and in the alternative, the applicants submitted that the law-enforcement authorities had no reason to suspect the existence of facts or information which would have satisfied an objective observer that the applicants had committed an offence. None of the applicants had participated in the rally and/or looting; on the contrary, all of them had been peaceful bystanders or passers-by. They contended that they had not resisted the approaches of the police, and that the Government had failed to specify in what respect their behaviour had not been law-abiding and what lawful orders of the police they had not complied with. They argued that non-compliance with police orders could not be abstract: there had to be specific orders based on the specific provisions of the Police Act that had been resisted or ignored. Thus, the applicants’ deprivation of liberty could not reasonably be considered necessary to prevent them from committing any offence or for the purpose of bringing them before a competent legal authority. The applicants’ detention had been arbitrary and contrary to the principle of proportionality.

The applicants also submitted that at the time of their arrest they had all been in possession of their identity documents. Thus, there had been no necessity to detain them to establish their identity.

2. The Government

The Government disputed the applicability of Article 5 § 1 in respect of the fourth applicant, owing to the short duration - less than one hour - of his detention. During that hour he had been arrested, taken to the place of detention in the harbour area, examined by a medical nurse, his head had been bandaged and he had been taken to the hospital, arriving there only an hour after he was apprehended. The Government also questioned the applicability of this provision in respect of the first applicant, whose detention had lasted four and a half hours, and the second applicant, whose total time of detention had been eight and a half hours only because his mother could not come and collect him earlier.

The Government further argued that the applicants had not exhausted appropriate domestic remedies. The fact that no elements of a criminal offence had been found in the actions of the police did not mean that it would have not been possible to ascertain the lawfulness or otherwise of acts or measures taken by the investigating authorities. The Government asserted that the applicants could have lodged a complaint with an administrative court under the Code of Administrative Court Procedure. In addition, the third, sixth and seventh applicants, in respect of whom offence proceedings had been initiated, could have challenged the measures under the specific regulation under Articles 228 to 230 of the Code of Criminal Procedure (see paragraph 53 above) and Articles 76 to 78 of the Code of Misdemeanour Procedure (see paragraph 55 above). The Government also referred in this context to the Supreme Court’s judgment of 10 January 2008 (see paragraphs 61 and 62 above).

As to the substance, the Government pointed to the following factual circumstances related to the applicants’ arrest. All the applicants had been arrested in the city centre, in the middle of the unauthorised gatherings and riots. All the applicants apart from the second applicant had been arrested between 9.30 p.m. and 2. a.m., that is late in the evening or at night. The second applicant had been arrested at 7.30 p.m., when he had tried to run away from the police. The Government referred to the domestic investigating authorities’ findings, in response to the applicants’ criminal complaints, that their behaviour had not been law-abiding and they had not complied with lawful orders of the police. The Government noted that five of the applicants had been arrested during the second and third nights of the disorder, prior to which the Government had appealed to people to stay at home. In respect of the third and sixth applicants, who had been arrested during the first night of the disorder, criminal proceedings had been initiated.

The Government argued that the applicants’ detention had been in compliance with the national law and permissible both under subparagraphs (b) and (c) of Article 5 § 1 of the Convention. The legal grounds and procedure for detention and deprivation of liberty were contained in the Code of Misdemeanour Procedure (Article 44) and the Code of Criminal Procedure (Article 217) which both allowed detention for up to forty-eight hours without a court order. The powers of detention were also established in section 13(1) of the Police Act where items (1) to (5) and (7) were of relevance for the present case.

In respect of Article 5 § 1 (b) of the Convention, the Government argued that there had been a suspicion that the participants in the April riots had committed either misdemeanours (for example breach of public order) or criminal offences (such as acts of violence against representatives of State authority, unauthorised public assembly, aggravated breach of public order, and so on). In view of the particular situation at the time, there had been reasonable suspicion that anyone present at the site of the mass disorder could have a connection with the offences which had been or were being committed. As the applicants had been present in this area and had not left, despite being instructed to do so, there was a basis for their detention and for their identity to be checked. As the primary task of the police was to restore order in the area of the riots in general, and there were also thousands of people present in the area, immediate identification had not been possible; in the interests of a speedy solution they had been taken away from the area of the disorder and identified in places of detention. When the situation had calmed down and after the identity of the detained persons had been established, and when it had become clear that they no longer posed a danger to public order, they had been released at the earliest opportunity. Proceedings were only brought against those found to have been directly linked to offences committed.

The Government argued that detention for failure to comply with a lawful order of a representative of state authority had been an appropriate and proportionate measure to ensure the performance of a specific legal duty, namely to stop the mass disorder and unauthorised gathering and to identify the people present in the area. Detention of this kind was compatible with Article 5 § 1 (b) of the Convention and section 13(1) items (1), (2) and (7) of the Police Act. The fact that offence proceedings were not initiated in respect of all the applicants does not render their detention unjustified. Detention of the applicants in respect of whom no offence proceedings were initiated only lasted between one hour and eight and a half hours. In the Government’s opinion this detention was proportionate.

The Government submitted, making reference to the Supreme Court’s judgment of 3 April 2006 (see paragraph 60 above), that drawing up a report on detention which was not followed by misdemeanour proceedings or criminal proceedings was not obligatory under section 13(1) of the Police Act. Considering the number of people who had been detained, drawing up identification reports on all of them would have unnecessarily lengthened their time in detention.

The Government further argued that the applicants’ detention had also been compatible with Article 5 § 1 (c) of the Convention. During the April events, short-term detention had been used in respect of individuals who had participated in the mass disorder or in whose case there had been reasons to suspect them of committing serious violations of public order. Offence proceedings had been conducted in respect of those who had been found to have been directly linked to offences, and the rest had been released. In offence proceedings, a person’s detention had its basis in section 13(1) items (5) and (7) of the Police Act, Article 217 of the Code of Criminal Procedure and/or Article 44 of the Code of Misdemeanour Procedure. These grounds were compatible with Article 5 § 1 (c) of the Convention and were primarily relevant in respect of the third, sixth and seventh applicants.

The third and sixth applicants had been arrested on suspicion of serious breach of public order involving resistance to police officers, acts of mass violence, and looting in central Tallinn. Reports on the detention of these applicants as suspects had been drawn up pursuant to Article 217 of the Code of Criminal Procedure; they had been questioned at the first opportunity after their arrest, and pertinent records of interview had been duly drawn up. In respect of the seventh applicant a misdemeanour report concerning a breach of public order had been drawn up, and he had subsequently been fined for that offence.

The Government noted that in October 2007 criminal proceedings had been discontinued in respect of the third and sixth applicants. However, this fact did not render their detention incompatible with Article 5 § 1 (c), since that provision did not presuppose that the police should have obtained sufficient evidence to bring charges, either at the point of arrest or while the applicant was in custody. Lastly, the Government considered that Article 5 § 1 (c) was also applicable to the first, second, fourth and fifth applicants, regardless of the fact that no offence proceedings had been initiated in respect of them, as it had not been known at the time of their detention that no such proceedings would be initiated.

B. The third-party intervener’s arguments

The Russian Government, in addition to their arguments which have been summarised in paragraphs 85 and 86 above, considered that there had been no grounds for arresting the applicants, as they had not participated in the disorder, protests or gatherings, and had simply happened to be in the vicinity of the relevant areas. No state of emergency had been declared or other restrictions introduced, and being out in the streets had not been prohibited during the April 2007 events.

C. The Court’s assessment

Admissibility

In addition to the principles emerging from the Court’s case-law in respect of the exhaustion of domestic remedies summarised in paragraphs 87 and 88 above, the Court reiterates that if there exists a doubt as to the effectiveness of a domestic remedy, that remedy must be tried (see, for example, Veeber v. Estonia (no. 1), no. 37571/97, § 62, 7 November 2002, and Raif v. Greece, no. 21782/93, Commission decision of 26 June 1995, Decisions and Reports 82, p. 5). According to the Court’s case-law in the area of the exhaustion of domestic remedies there is a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success. However, once this burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government had in fact already been used, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from the requirement (see, for example, Akdivar and Others v. Turkey, 16 September 1996, § 68, Reports 1996-IV, and Selmouni, cited above, § 76).

The Court considers that it does not need to determine in the present case whether Article 5 § 1 of the Convention was applicable to all the applicants - as disputed by the Government - as this complaint has to be declared inadmissible in any event, for the reasons set out below.

The Court notes that unlawful deprivation of liberty as such indeed constituted a criminal offence under the Penal Code. However, it observes that the arrests and detentions during the April events were part of a major police operation aimed at quelling the large-scale rioting that lasted for several days, and as such can hardly be seen as an arbitrary exercise of authority or unlawful deprivation of liberty within the meaning of the criminal law. According to the official sources referred to by the applicants, 1,160 people were arrested during the April events; sixty-five criminal cases were opened, involving 300 suspects, mostly concerning serious breaches of public order and disregard of lawful orders (see paragraph 13 above). The Court notes that there is no information as to how far the 1,160 people arrested and the 300 suspects in criminal cases overlapped. However, having regard to the ratio of the people in respect of whom criminal proceedings were initiated to those arrested, the Court is unable to conclude, in the circumstances, that the arrests were arbitrary and unlawful and could be considered prima facie criminal offences committed by the police officers involved. Therefore, it cannot agree that a criminal complaint could be considered a remedy with a reasonable prospect of success in the present case. The Court finds force in the Government’s argument that any deficiencies in the legal basis and procedure related to the arrests and detentions in question - which in broad terms, no doubt, pursued the aims of national security, public safety and prevention of crime - should have been addressed either in administrative court proceedings or in complaints procedures within criminal or misdemeanour proceedings in cases where such proceedings had been initiated in respect of the persons concerned. However, it appears that the applicants in the present case did not avail themselves of these remedies. Therefore, they cannot be considered as having exhausted available and effective remedies.

As regards the applicants’ argument that the Supreme Court’s judgment of 10 January 2008 (see paragraphs 61 and 62 above), referred to by the Government, dates from a later period, the Court considers that the judgment in question in substance dealt with the setting of precise boundaries between administrative court proceedings on the one hand and complaints procedures within misdemeanour or criminal proceedings against the alleged victims of the use of police measures, on the other. It was based on the legal texts that were in force at the time of the events relevant for the present case and did not create any substantially new rules.

The Court is not persuaded by the applicants’ argument that challenging the actions of the police as a whole had been made very much more difficult, taking into account the extremely heated psychological climate connected with the April events in Estonia, in the context of which the applicants referred to “real hysteria” in the Estonian mass media, as well as statements by some politicians and high officials. The Court considers that there is no reason to call into question the courts’ impartiality and independence for this reason. It considers that the applicants have not put forward any convincing arguments as to inadequacy or ineffectiveness of the remedies advanced by the Government in the particular circumstances of the case, and have not indicated any special circumstances absolving them from the requirement to avail themselves of these remedies. Although there can be no absolute certainty about what the outcome of the case would have been had the applicants lodged the complaints suggested by the Government, the Court reiterates that in case of doubt as to the success, a remedy has to be tried.

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

III. ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE CONVENTION

The applicants further claimed an enforceable right to compensation in accordance with Article 5 § 5 of the Convention, which reads as follows:

“5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

The Government contested that argument.

The Court reiterates that the right to compensation set forth in paragraph 5 presupposes that a violation of one of the preceding paragraphs of Article 5 has been established, either by a domestic authority or by the Court (see, for example, Benham v. the United Kingdom, 10 June 1996, § 50, Reports 1996-III, and, more recently, Collmann v. Germany (dec.), no. 29453/02, 3 April 2007).

In the absence of a finding of a breach of Article 5, paragraphs 1 to 4 of the Convention, Article 5 § 5 is not applicable in the present case.

It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

The applicants asked the Court to afford them just satisfaction for non-pecuniary damage consisting of feelings of fear, frustration, distress and anguish as a result of ill-treatment, unlawful deprivation of liberty and related failure of the authorities to provide them just and appropriate compensation.

The Government argued that the applicants had not claimed compensation from the domestic authorities and therefore domestic remedies had not been exhausted in respect of their claim for damages. Furthermore, they submitted that, should the Court find a violation of the applicants’ rights, a finding of a violation would constitute sufficient just satisfaction. Should the Court nevertheless decide to make an award for non-pecuniary damage, the Government called on it to determine a reasonable sum.

The Court notes that the argument concerning the non-exhaustion of domestic remedies does not apply in respect of the issue of awarding damages under Article 41 of the Convention.

The Court reiterates that an applicant who has already exhausted domestic remedies to no avail before complaining to this Court of a violation of his or her rights is not obliged to do so a second time in order to be able to obtain just satisfaction from the Court (see De Wilde, Ooms and Versyp v. Belgium (Article 50), 10 March 1972, § 16, Series A no. 14, and, more recently, Jalloh v. Germany [GC], no. 54810/00, § 129, ECHR 2006-IX). Accordingly, the Court is not prevented from making an award on that account.

The Court considers that the first, fourth, fifth and seventh applicants’ distress and frustration resulting from the procedural violation of Article 3 and, in case of the fifth applicant, also from the substantive violation of Article 3, cannot be compensated by a mere finding of a violation. Making its assessment on an equitable basis, the Court awards the first, fourth and seventh applicants EUR 11,000 each in respect of non-pecuniary damage. It awards the fifth applicant EUR 14,000 under the same head.

B. Costs and expenses

The applicants also claimed 4,064 pounds sterling (GBP) for costs and expenses incurred before the Court. This comprised GBP 2,500 for twenty hours’ work by Mr Bowring, GBP 190 for administrative costs at the European Human Rights Advocacy Centre in London and GBP 1,374 for translation fees and administrative costs to be paid by the Legal Information Centre for Human Rights in Tallinn.

The Government considered the legal-aid fees and the administrative costs too high and found the translation costs unnecessary.

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. Furthermore, the Court considers that in the present case a reduction should be applied to the amount claimed in respect of legal fees and costs on account of the fact that some of the applicants’ complaints were declared inadmissible or no violation was found. Regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 3,000 for the proceedings before the Court.

C. Default interest rate

The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the first, fourth, fifth and seventh applicants’ complaint concerning their ill-treatment and ineffective investigation admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 3 of the Convention under its substantive limb in respect of the fifth applicant and no violation in respect of the first, fourth and seventh applicants;

3. Holds that there has been a violation of Article 3 of the Convention under its procedural limb in respect of the first, fourth, fifth and seventh applicants;

4. Holds

(a) that the respondent State is to pay the applicants, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:

(i) EUR 11,000 (eleven thousand euros) to each of the first, fourth and seventh applicants, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 14,000 (fourteen thousand euros) to the fifth applicant, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(iii) EUR 3,000 (three thousand euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be converted into United Kingdom pounds sterling at the rate applicable at the date of settlement and paid into the applicants’ representatives’ bank account in the United Kingdom;

(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;

5. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 28 March 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Nielsen Isabelle Berro-Lefèvre
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> KOROBOV AND OTHERS v. ESTONIA - 10195/08 - HEJUD [2013] ECHR 250 (28 March 2013) URL: http://www.bailii.org/eu/cases/ECHR/2013/250.html Cite as: [2013] ECHR 250