NEKRASOV v. RUSSIA - 8049/07 (Judgment (Merits and Just Satisfaction) : Court (Third Section)) [2016] ECHR 420 (17 May 2016)

In the case of Nekrasov v. Russia,

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

          Luis López Guerra, President,
          Helena Jäderblom,
          Helen Keller,
          Johannes Silvis,
          Dmitry Dedov,
          Branko Lubarda,
          Pere Pastor Vilanova, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 26 April 2016,

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

PROCEDURE

1. The case originated in an application (no. 8049/07) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Sergey Anatolyevich Nekrasov (“the applicant”), on 10 February 2007.

2. The applicant was represented by Ms V. Nikulina, a lawyer practising in Tyumen. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights.

3. The applicant complained, in particular, that he had been ill-treated by the police between 17 November and 23 November 2004 and that there had been no effective investigation into the matter; that his detention on remand had been unlawful and not based on relevant and sufficient reasons; and that he had not been afforded sufficient time to study the case file and had thereby been denied a fair trial.

4. On 17 January 2012 the above complaints were communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1967 and is currently serving a sentence of imprisonment in a correctional colony in the Republic of Bashkortostan.

A. The applicant’s alleged ill-treatment, arrest, medical assistance and investigation of the alleged ill-treatment

1. Alleged ill-treatment between 17 November and 23 November and on 29 November 2004

6. On 17 November 2004 the applicant was abducted, allegedly by the police. According to him, he was first taken to the premises of the Tyumen police Organised Crime Department (“the Organised Crime Department”) and subsequently to a private cottage, where he was allegedly subjected to various forms of ill-treatment until 23 November 2004. The applicant was forced to do the splits, he was suffocated with a plastic bag, a book was held on top of his head and hit with a mallet, causing him to suffer head injuries, he had his arms twisted and stretched out and was given nothing to eat.

7. On 23 November 2004 the applicant was arrested and taken to the Organised Crime Department’s premises to be interrogated and was subsequently put in a temporary detention facility. He was examined by a medical assistant and discovered to have large bruises on both thighs, abrasions in the area of the nasal septum and limitation of movement in the left hand and both legs. An X-ray examination performed on the same date showed no clear indications of structural, anatomic or traumatic changes in the applicant’s bones.

8. On 25 November 2004 the applicant was admitted to detention facility SIZO-72/2 in Zavodoukovsk, the Tyumen Region. Upon admission the applicant was discovered to have a bruise on the upper third of the left inner shoulder up to 3 cm in diameter, large bruises on the surface of his inner thighs and a large bruise on the upper third of the right inner shin. He was treated with antibiotics, vitamins, and analgesic and vascular medications.

9. On 29 November 2004 charges were brought against the applicant. He alleged that he had been beaten up by officers of the Organised Crime Department for his refusal to make self-incriminating statements.

10. On the same date the applicant made a request for a forensic medical examination to confirm the injuries sustained by him between 17 November and 23 November 2004. The investigator ordered a review of the applicant’s medical file by a forensic medical expert.

11. From 30 November to 7 December 2004 the applicant was again held in the temporary detention facility. Upon his admission he could not walk unassisted, explaining that his legs hurt. No physical injuries were discovered on him. The applicant made no requests for medical assistance.

12. In the meantime, on 1 December 2004 the forensic medical expert concluded that it was impossible to carry out a review in the absence of the relevant documents (report no. 9900).

13. On 3 December 2004 a lawyer was appointed to represent the applicant.

14. On 9 December and 14 December 2004 the applicant’s lawyer complained to the prosecutor for the Leninskiy District of Tyumen (“the district prosecutor”) and the Tyumen regional prosecutor (“the regional prosecutor”) respectively about the beatings administered to the applicant between 17 November and 23 November 2004 by unidentified people. Outlining the circumstances of the beatings and their consequences on the applicant’s health, the lawyer requested the institution of criminal proceedings against the perpetrators and that the applicant be admitted to hospital as a matter of urgency.

15. From 12 December to 23 December 2004 the applicant underwent hospital treatment for his injuries. An extract from his medical records indicates that he was referred to the hospital with a diagnosis of post-traumatic femoral and paroneal nerve damage, and that he was released following a diagnosis of simulating the symptoms of a number of neurological conditions.

16. On 27 January 2005 the investigator again ordered a review of the applicant’s medical file by a forensic medical expert.

17. On 28 January 2005 the forensic medical expert reported that the abrasions on the bridge of the applicant’s nose, in the region of his left elbow, left forearm, right shin and left thigh would not cause harm to the applicant’s health and had been inflicted by the impact of blunt objects, which had not left traces suitable for identification, between eight to thirteen days prior to the applicant’s examination (apparently, the report referred to the applicant’s examinations on 23 November and 25 November 2004) (report no. 691).

18. From 20 February to 7 April, from 16 May to 28 June, from 22 October to 7 November and from 29 November to 5 December 2005, from 27 January 2006 to an unspecified date and from 28 February to 21 March 2006 the applicant underwent hospital treatment for a variety of neurological conditions (neuropathy of the sciatic nerve, neuritis of the left radial and left paroneal nerves, osteochondrosis of the lumbosacral spine, polyneuropathy and distal paresis of the lower limbs).

19. In the meantime, on 27 April 2005 the investigator appointed a panel to conduct a forensic medical examination of the applicant.

20. On 11 May 2005 the applicant’s lawyer applied to the regional prosecutor, claiming, inter alia, that the applicant had not been receiving adequate medical assistance and seeking the alteration of the applicant’s custodial measure.

21. On 24 May 2005 the applicant was examined by forensic medical experts, who on 26 May 2005 issued report no. 80 containing the following conclusions:

“... Complaints of inability to walk, absence of movement [and] numbness in the left hand, pain in the left forearm at rest and in movement, periodic enuresis. The above symptoms appeared several weeks after [the applicant] had been handcuffed for seven days by his left hand to a radiator, had received multiple blows to his arms and his legs and had been stretched out. Suffers ... from osteochondrosis of the lumbar region. Demonstrates immobility while walking, sharply [reduced mobility] in the left hand, especially the wrist. Moves with the assistance of two persons carrying him by the shoulders. Neurological status. Cranial nerves without irregularities. Diffuse hypotension in the left hand muscles. Not possible to state objectively the capacity of active movement due to manifestly [feigned] behaviour. Full extent of passive movement in all articulations. The left wrist position is typical for radial nerve lesion - “wrist drop”. The left foot position is typical for peroneal nerve lesion - “foot drop”. Sensory damage impossible to reveal due to manifestly [feigned] behaviour.”

22. In the period between 27 April and 5 May 2006 the applicant underwent a medical examination, resulting in the following conclusion: “lumbar spinal osteochondrosis, herniated disk, radiculopathy, simulation of neurological conditions”.

23. Between 30 December 2004 and 19 July 2007 an investigator of the Tsentralnyy district prosecutor’s office of Tyumen issued at least seven decisions refusing the institution of criminal proceedings against police officers or any other people for allegedly ill-treating the applicant between 17 November and 23 November 2004. All of the above decisions, except for the most recent decision of 19 July 2007, were subsequently set aside by the deputy prosecutor of the Tsentralnyy district prosecutor’s office of Tyumen as unfounded, and additional pre-investigation inquiries were ordered. The above decisions were based on the following evidence:

- explanations by the applicant that on 17 November 2004 he and [one of his co-defendants] Yam. had been forced into a green VAZ 2110 car by three unidentified men. They had been taken blindfolded to a yellow brick building. Unidentified people had started stretching the applicant out, asking him about money and firearms. The applicant had replied that he had no money or guns. In the evening, the applicant had been taken by car to a cottage said to have been situated in the village of Patrushevo and to have belonged to the Bor. family. The applicant had seen people from the Bor. family in the cottage. He had spent seven days in the cottage, during which time he had been repeatedly subjected to torture. The unidentified men had threatened to kill the applicant’s son. On 23 November 2004 the applicant and Yam., blindfolded and handcuffed to one another, had been taken to a car and left on their own. Yam. had shouted out, asking that the handcuffs be taken off, but the unidentified people had already left. A police officer had then approached the car and had taken the applicant and Yam to the police station. After an hour, the applicant and Yam. had been taken to the Organised Crime Department. There, the applicant had recognised two men who had tortured him, who turned out to be police officers. After physical and mental coercion, the applicant had confessed to having abducted M. Bor;

- explanations by the applicant’s co-defendant, Yam., similar to that of the applicant above;

- a report by chief police officer S., who submitted that on 23 November 2004 police officer D. had contacted him and asked him to assist him in the arrest of the applicant and Yam.;

- explanations by police officer D., who submitted that on 23 November 2004 he had seen a VAZ 21213 car with two people inside. He had previously received information that the above car was being searched for, having been used in the commission of several particularly serious crimes and that those responsible for the crimes might be inside the car. D. took the decision to arrest the two people in the car;

- explanations by the head of the Organised Crime Department, Sh., who submitted that in September 2004 M. Bor. had been abducted and that criminal proceedings had been instituted in that connection. The investigation had been entrusted to the Organised Crime Department. In the course of operational proceedings it had become apparent that the applicant, Yam., and [another person, who had been identified later as L.] had been involved in the crime under investigation. On 19 November 2004 L. had been arrested. He had confessed to his involvement in the abduction of M. Bor. On 20 November 2004 B. had been arrested and given self-incriminating statements. On the same day, the applicant’s and Yam.’s flats and garages had been searched, but that had not yielded anything. On the following day, information had been sent to all police stations to search for the applicant and Yam. On 23 November 2004 the Organised Crime Department had been informed that the applicant and Yam. had been arrested. The latter were taken to the Organised Crime Department. Sh. further submitted that he had not known about the abduction of the applicant and Yam. No physical force had been applied to them and they had not been subjected to any pressure;

- explanations by M. Bor. and B. Bor., who submitted that they did not know the applicant and Yam. They further submitted that they owned an incompletely built cottage that had no heating or lighting;

- the record of the applicant’s arrest of 23 November 2004 from which it could be seen that the applicant had made no allegations regarding ill-treatment by the police;

- expert report no. 9900 (see paragraph 12 above);

- expert report no. 691 (see paragraph 17 above);

- the report of a service inquiry by the IZ-72/2 remand prison in connection with the delayed recording of Yam.’s physical injuries;

- an expert report on Yam.’s physical injuries;

- explanations by Yam.’s ex-wife;

- explanations by the applicant’s wife to the effect that on 17 November 2004 the applicant had not come home, and that on 20 November 2004 the police had carried out a search of their flat and seized the applicant’s personal belongings, video and audio equipment, and the applicant’s hunting rifles. On 23 November 2004 a lawyer, Yar., called to inform her that the applicant had been arrested and was at the premises of the Organised Crime Department. The applicant’s wife further asked that medical assistance be provided to the applicant who had been in a very bad state of health;

- the reply from the prison hospital where the applicant had been examined in the neurological unit and given the following diagnosis: “Mentally healthy, simulation of neurological condition. Inclined to feigned behaviour, fit for work without limitations.”;

- a similar document concerning Yam.;

- the questioning of Yam.’s ex-wife as part of the criminal proceedings against him and the applicant to the effect that Yam. had been “mad” about guns and hunting, that he had often been absent for several days, that he had been friends with the applicant and that they used to go hunting together;

- the questioning of Yam.’s son to the effect that his father and the applicant had been friends and had often gone hunting together; that on 17 November 2004 Yam. had left and he had not known his whereabouts;

- the questioning of the applicant’s step-daughter, Z., to the effect that the applicant had been friends with Yam. and that they had often hunted together, that sometimes the applicant had been absent for several hours during the day, and that sometimes he did not leave the house for several days;

- the questioning of Z.’s husband to the effect that the applicant had often gone hunting with his friend Yam.

24. Having regard to the above evidence, the decisions refusing the institution of the criminal proceedings in respect of the applicant’s allegations of ill-treatment concluded that:

- the abrasions on the bridge of the applicant’s nose, in the region of his left elbow, left forearm, right shin and left thigh had not caused harm to the applicant’s health;

- the presence of abrasions on the applicant’s body, which had not caused harm to the applicant’s health and could have appeared in the course of everyday life, had not been indicative of alleged torture;

- the applicant was inclined to lie and deceive;

- between 17 November and 23 November 2004 measures had been taken by the domestic authorities to identify and arrest those involved in the commission of crimes with which the applicant and his co-defendants had been charged, however the applicant could not be located;

- the applicant had often gone away from home hunting, therefore his allegation of abduction should be regarded with a critical eye as being a means to avoid criminal responsibility; the applicant’s allegations had contradicted the statements by the police officers, and the Bor. family, who did not know the applicant.

2. Alleged ill-treatment on 20 July 2005

25. On 20 July 2005 the applicant was brought to the Leninskiy District Court in Tyumen (“the District Court”) in order to participate in a hearing concerning the extension of his custody. As the applicant could not walk, he was assisted by two officers from the Organised Crime Department. After the hearing, the officers dragged the applicant out of the courthouse to the prison van, where they allegedly subjected him to severe beatings on the way to remand prison IZ-72/1 in Tyumen where the applicant was being detained at the material time.

26. The applicant’s lawyers complained on 1 August 2005 about the above incident to the Tyumen regional prosecutor.

27. On 10 August 2005 the district prosecutor refused to institute criminal proceedings against the alleged perpetrators.

B. Seizure and attachment of the applicant’s belongings

28. On 20 November 2004 a search was carried out in the applicant’s flat. The investigator seized a camera belonging to the applicant and his wife and the applicant’s hunting rifles as material evidence.

29. On 1 June 2005 the District Court granted the investigator’s request for the impounding of a VAZ 21213 car and the attachment of a garage belonging to the applicant.

30. On 2 June 2005 the investigator drew up a record of the impounding of the applicant’s car and the attachment of his garage.

31. Following the applicant’s conviction, the rifles were destroyed and the car and the garage were confiscated to cover the damage sustained by the victims.

32. It appears that the applicant’s wife brought proceedings seeking to get the camera back. The outcome of those proceedings has not been disclosed to the Court.

C. The applicant’s detention pending the investigation

33. On 25 November 2004 the District Court remanded the applicant in custody, referring to the particular gravity of the charges against him and the risk of his absconding and obstructing justice.

34. On 17 January, 15 March and 20 July 2005 the District Court extended the applicant’s detention until 23 March, 25 July and 23 November 2005 respectively. On each occasion the court took into consideration the particular gravity of the charges against the applicant, his being suspected of having committed several other crimes and his being unemployed, which created the risk of his absconding, resuming criminal activity and obstructing the administration of justice in the case. The court further held that the material in the case file contained no evidence to the effect that the applicant’s state of health prevented him from being detained in a remand prison.

35. On 2 August 2005 the Tyumen Regional Court (“the Regional Court”) quashed the extension order of 15 March 2005 on appeal (considered in the applicant’s absence) and remitted the matter for fresh examination by a different bench.

36. On 19 August 2005 the District Court ex post facto authorised the applicant’s detention until 25 July 2005.

37. On 17 November 2005 the Regional Court extended the applicant’s detention until 23 February 2006. In addition to the reasoning previously applied, the court mentioned the risk of the applicant’s hiding and destroying evidence.

38. On 20 February 2006 the Regional Court further extended the applicant’s detention pending trial for a total of eighteen months, until 23 May 2006. The court further mentioned the risk of the applicant’s exerting pressure on victims and witnesses.

39. On 25 May 2006 the Supreme Court of Russia (“the Supreme Court”) upheld the above decision on appeal.

40. On 17 May 2006 the Regional Court extended the applicant’s detention on remand until he and his lawyer had finished studying the case file and the case was submitted to the trial court.

41. The applicant appealed, claiming, inter alia, that the Regional Court had not indicated the end date of his detention period, thereby rendering it impossible to seek further judicial review of the issue.

42. On 10 August 2006 the Supreme Court upheld the extension order of 17 May 2006 on appeal. The Supreme Court found as follows:

“... [P]ursuant to Article 109 § 8 of the Code of Criminal Procedure, the court correctly extended the [applicant’s] detention until such time as [he] and [his] lawyer have finished studying the case file materials ...

The statement in the appeal to the effect that the court was required to indicate a specific date when extending [the applicant’s] detention in such circumstances was not based on [domestic] law. ...”

D. The applicant’s detention pending trial

43. On 8 November 2006 the Regional Court extended the applicant’s detention for thirty days, to be counted from the date on which the prosecutor had approved the indictment in respect of the applicant and sent the case to the trial court.

44. The applicant appealed, claiming, inter alia, that the above decision had failed to indicate a specific end date for the extension of his period in detention.

45. On 19 January 2007 the Supreme Court upheld the above decision on appeal. In reply to the applicant’s argument, the court noted as follows:

“... As is clear from the decision [of 8 November 2006], when the issue of extending [the applicant’s] detention [was being decided] the indictment had already been prepared. The time-limits for submitting the indictment to the prosecutor are determined by [domestic] law; therefore, the calculation of the time-limit for [the applicant’s] detention depended on the submission of the criminal case to the prosecutor. ...”

46. In the meantime, on 15 November 2006 the supervising prosecutor approved the indictment and the case against the applicant was sent to the Regional Court for trial.

47. On 14 December 2006 the Regional Court set the opening date of the trial and extended the detention of the applicant and four co-defendants until 15 June 2007.

48. On 6 June, 2 August and 2 November 2007, and 22 January 2008 the Regional Court extended the detention of the applicant and his co-defendants until 15 August and 15 November 2007, and 15 February and 15 May 2008 respectively. The court referred to the particular gravity of the charges against the defendants, the risk of their absconding, resuming their criminal activity, threatening witnesses and other participants in the proceedings, destroying evidence and otherwise obstructing the administration of justice. The court found no reasons to alter the custodial measure in respect of the defendants and, in so far as the applicant’s health was concerned, mentioned that the forensic medical report contained in the case file indicated that the applicant was simulating the symptoms of neurological conditions and that there was nothing to prevent him from participating in the proceedings.

49. On 13 September 2007, and 10 January, 11 March and 28 April 2008 respectively the Supreme Court upheld the above decisions on appeal.

E. Alleged violation of the presumption of the applicant’s innocence

50. On 2 December 2006, in the course of a preliminary hearing in the applicant’s case, the investigator gave an interview to the local newspaper The Tyumen Courier (Тюменский курьер) in which she referred to the applicant and his co-defendants as a criminal gang and expressed her opinion on the issue of their guilt.

51. On 14 September 2007 another local newspaper Aloud about the Most Important Things (Вслух о главном) published an article, giving an update about the ongoing trial against Yam.’s criminal gang.

F. Access to the case file by the defence

52. On 4 April 2006 the applicant and his lawyer were notified that the investigation had come to an end. On the same day they expressed their wish to study the case file, both together and separately.

53. On 12 April 2006 the applicant and his lawyer started going through the case file, which comprised forty-nine volumes, fifteen audio and video tapes and physical evidence.

54. Between 12 April 2006 and 1 September 2006 the applicant looked through thirty volumes of the case file, while his lawyer examined five volumes.

55. On 6 September 2006 the District Court set a deadline of 30 September 2006 for the applicant and his lawyer to finish going through the case file. The applicant appealed.

56. On 2 October 2006 the investigator took a decision to terminate the studying of the case file by the applicant and his lawyer.

57. Numerous requests by the applicant to be granted additional time to examine the case file were refused.

58. On 14 November 2006 the Regional Court held on appeal that the applicant and his lawyer should be allowed to study all the case file material, including audio and video tapes and physical evidence, until the expiry of the deadline for the conclusion of the pre-trial investigation (extended by then until 27 November 2006).

59. However, as mentioned above, on 15 November 2006 the case file was sent to the Regional Court for trial without the applicant and his lawyer having been able to finish examining it (see paragraph 46 above).

60. Following an application by the applicant and his lawyer in the course of the trial, the latter was afforded an opportunity to study the case file between 4 December and 28 December 2006.

61. On 11 January 2007 the applicant applied to the Regional Court for more time to study the case file in full, including the audio and video tapes and the material evidence.

62. However, that application was dismissed on the same day by the Regional Court. It noted that the applicant had been given additional time to complete his studying of the case file (see paragraph 60 above), and that although it had been open to him to study the case file each day until 6 p.m., he had only done so until 3 p.m. The Regional Court therefore concluded that the applicant had been afforded sufficient time to finish studying the case file and that he had familiarised himself with it as much as he had considered necessary. As to studying the audio and video tapes and physical evidence, the Regional Court held that those items would be examined during the trial to the extent considered necessary by the prosecution and defence.

63. On 5 March 2007 the applicant and his lawyer were afforded additional time to study the case file.

G. The applicant’s conviction

64. On 6 May 2008 the Regional Court, in a jury trial, convicted the applicant of involvement in an organised armed gang, theft, robbery, illegal deprivation of liberty, the stealing of firearms, hijacking, murder, kidnapping and extortion, and sentenced him to twenty-five years’ imprisonment.

65. The presiding judge had previously sat on the bench examining the appeal against the decision of 6 September 2006 limiting the time which the applicant had been allowed to study the case file.

66. It appears that some members of the public wishing to attend the trial were not let in, as the presiding judge made an order in respect of those arriving late to court.

67. The defence asked to tape record the hearing, but their request was dismissed so that the jury would not feel intimidated.

68. On 12 May 2009 the Supreme Court modified the qualification of the crimes committed by the applicant and upheld the rest of the judgment on appeal.

II. RELEVANT DOMESTIC LAW

A. Prohibition of torture and other ill-treatment. Procedure for examining a criminal complaint

69. For a summary of the relevant domestic law see Khismatullin v. Russia (no. 33469/06, §§ 27-33, 11 December 2014).

B. Arrest and preventive measures in criminal proceedings, time-limits for detention “pending the investigation”, time-limits for detention “before the court”/”during the trial”

70. For a summary of the relevant domestic law and practice see Suslov v. Russia (no. 2366/07, §§ 46-59 and §§ 63-68, 29 May 2012).

C. Access to the case file by the defence

71. Having decided that all the investigative actions in the case have been carried out and that the evidence is sufficient to prepare a bill of indictment, an investigator informs the accused that the investigation is terminated and that the accused has the right to study the entire case file personally, and with the assistance of counsel (Article 215 § 1 of the Code of Criminal Procedure of the Russian Federation, “the CCrP”).

72. The investigator provides the accused and counsel with the bound and numbered documents in the case file, as well as any physical evidence and, at the request of the accused or counsel, any photographs, audio and/or video recordings and other annexes to the record of investigative actions. At the request of the accused and counsel, the investigator provides them with the possibility to study the case file separately (Article 217 § 1 of the CCrP).

73. While studying a case file consisting of several volumes, the accused and counsel are entitled to repeated access to any of the volumes of the case file, to note down any amount of information and to make photocopies (Article 217 § 2 of the CCrP).

74. The accused and counsel cannot have time limits placed on how long they can study the case file, except when they deliberately protract the process. In such cases, the time afforded to them for such a purpose can be restricted by the court. If the accused and counsel fail to finish studying the case file within the time-limit established by the court, the investigator has the right to take the decision to terminate that procedural action (Article 217 § 3 of the CCrP).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

75. The applicant complained that he had been subjected to ill-treatment by the police between 17 and 23 November 2004, in breach of Article 3 of the Convention, which reads as follows:

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

A. Admissibility

76. The Government argued that the applicant had failed to exhaust the domestic remedies available to him in respect of his complaint under Article 3 of the Convention. They noted, in particular, that the applicant had never sought a judicial review of the authorities’ decision not to open criminal proceedings.

77. The Court reiterates that, in principle, a judicial appeal against a decision not to institute criminal proceedings may offer a substantial safeguard against the arbitrary exercise of power by the investigating authority, given a court’s power to annul such decisions and indicate the defects to be addressed (see Zakharin and Others v. Russia, no. 22458/04, § 50, 12 November 2015; Chumakov v. Russia, no. 41794/04, § 91, 24 April 2012; and Belevitskiy v. Russia, no. 72967/01, § 61, 1 March 2007). Therefore, in the ordinary course of events such an appeal might be regarded as a possible remedy where the prosecution has decided not to investigate the claims.

78. The Court, however, has strong doubts that this remedy would have been effective in the present case. It observes that the investigator’s decisions not to institute criminal proceedings into the applicant’s allegations of ill-treatment were set aside on at least six occasions by the supervising prosecutor and additional pre-investigation inquiries were ordered (see paragraph 23 above). In those circumstances, the Court is not convinced that an appeal to a court, which could only have had the same effect, would have offered the applicant any redress. It considers, therefore, that such an appeal in the particular circumstances of the present case would have been devoid of any purpose. The Court finds that the applicant was not obliged to pursue that remedy and holds that the Government’s objection should therefore be dismissed (see Chumakov, cited above, § 91; Khatsiyeva and Others v. Russia, no. 5108/02, § 151, 17 January 2008; and Esmukhambetov and Others v. Russia, no. 23445/03, § 128, 29 March 2011).

79. The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. Submissions by the parties

80. The Government explained at the outset that they could not comply with the Court’s request to submit copies of the decisions taken by the domestic authorities in relation to the applicant’s complaint of ill-treatment or material from the relevant pre-investigation inquiries, because those documents had been destroyed in 2008 and 2011 due to the expiry of the regulatory storage term. The Government further submitted on the merits that the applicant had failed to apply in a timely manner to a medical institution for recording the bodily injuries which he had allegedly sustained at the hands of the police. Furthermore, relying on the conclusions of the applicant’s medical examinations as to the nature of the injuries and the possible time of their infliction (see paragraphs 7, 12 and 17 above), the Government submitted that the injuries in question had originated prior to the applicant’s arrest by the police. Finally, the Government noted that pre-investigation inquiries had been carried out into the applicant’s allegations of ill-treatment by the police in accordance with Articles 144-145 of the CCrP, as a result of which it had been decided on 19 July 2007 not to institute criminal proceedings. They concluded, therefore, that the applicant’s complaint had been manifestly ill-founded.

81. The applicant maintained his complaint.

2. The Court’s assessment

(a) The State’s obligation to conduct an effective investigation

(i) General principles

82. The Court reiterates that the obligation of the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3 of the Convention, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to ill-treatment, including ill-treatment administered by private individuals (see, among other authorities, Šečić v. Croatia, no. 40116/02, § 52, 31 May 2007, and Muta v. Ukraine, no. 37246/06, § 59, 31 July 2012).

83. Where an individual raises an arguable claim of ill-treatment, including of ill-treatment administered by private individuals, Article 3 of the Convention gives rise to a procedural obligation to conduct an independent official investigation (see Šečić, cited above, § 53, and Biser Kostov v. Bulgaria, no. 32662/06, § 78, 10 January 2012).

84. Even though the scope of the State’s positive obligations might differ between cases where treatment contrary to Article 3 of the Convention has been inflicted through the involvement of State agents and cases where violence is inflicted by private individuals (see Beganović v. Croatia, no. 46423/06, § 69, 25 June 2009), the requirements as to an official investigation are similar. For the investigation to be regarded as “effective”, 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. This is not an obligation of the result to be achieved, but one of means employed. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence, and so on. Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard, and a requirement of promptness and reasonable expedition is implicit in this context (see Tyagunova v. Russia, no. 19433/07, § 65, 31 July 2012). In cases under Articles 2 and 3 of the Convention where the effectiveness of the official investigation has been at issue, the Court has often assessed whether the authorities reacted promptly to the complaints at the relevant time (see Labita v. Italy [GC], no. 26772/95, §§ 133 et seq., ECHR 2000-IV). Consideration has been given to the opening of investigations, delays in taking statements (see Timurtaş v. Turkey, no. 23531/94, § 89, ECHR 2000-VI, and Tekin v. Turkey, 9 June 1998, § 67, Reports of Judgments and Decisions 1998-IV) and to the length of time taken for the initial investigation (see Indelicato v. Italy, no. 31143/96, § 37, 18 October 2001).

(ii) Application of the general principles to the present case

85. The Court observes that on 29 November 2004 the applicant asked the investigator to arrange for a forensic medical examination to confirm the injuries sustained by him between 17 November and 23 November 2004 (see paragraph 10 above). The Court further notes that on 9 December and 14 December 2004 the applicant’s lawyer complained to the Tyumen district and regional prosecutors about the beatings administered to the applicant between 17 November and 23 November 2004 by unidentified people (see paragraph 14 above). The existence of the injuries in question was confirmed by the applicant’s medical examination at the premises of the Organised Crime Department on 24 November 2004 and the medical examination carried out the following day when he was admitted to the remand prison (see paragraphs 7-8 above). The applicant’s claim was therefore shown to be credible, and the domestic authorities were placed under an obligation to conduct an effective investigation satisfying the above requirements of Article 3 of the Convention.

86. The Court notes that in the period between December 2004 and July 2007 the domestic authorities carried out a “pre-investigation inquiry” into the applicant’s complaint under Article 144 of the CCrP (проверка по заявлению о преступлении). During that period, which amounted to approximately two and a half years, at least seven decisions were taken by the domestic authorities refusing the institution of criminal proceedings against police officers or any other people for lack of evidence that a crime had been committed. All these decisions, except the last one, were quashed by the supervising prosecutor as unfounded, and additional pre-investigation inquiries were ordered. As a result of its refusal to open a criminal case, the domestic investigating authority has therefore never conducted a preliminary investigation into the applicant’s alleged ill-treatment, that is, a fully-fledged criminal investigation in which the whole range of investigative measures are carried out, such as questioning, formal confrontations and identification parades (see paragraph 23 above).

87. The Court observes that it recently found in the case of Lyapin v. Russia (no. 46956/09, 24 July 2014) that the domestic authorities’ refusal to open a criminal case in respect of the applicant’s credible allegations of serious ill-treatment in police custody amounted to a failure to carry out an effective investigation, as required by Article 3 of the Convention. In that case, having examined the scope of “pre-investigation inquiry” under the Russian law on criminal procedure, the Court found, in particular, that a “pre-investigation inquiry” alone (if not followed by a “preliminary investigation”) is not sufficient to establish the facts of the case, in particular, the identity of the alleged perpetrators, and is not capable of leading to the punishment of those responsible for the alleged ill-treatment, since the opening of a criminal case and a criminal investigation are prerequisites for bringing charges against the alleged perpetrators, which may then be examined by a court (ibid., §§ 128-40).

88. The Court considers that its findings in the above case are applicable to the case at hand. It concludes, therefore, that the refusal to open a criminal case in respect of credible allegations by the applicant that he had sustained serious injuries as a result of the alleged ill-treatment between 17 November and 23 November 2004 amounted to a failure to carry out an effective investigation, as required by Article 3 of the Convention. This conclusion makes it unnecessary for the Court to examine in detail the many rounds of pre-investigation inquiries conducted in the applicant’s case with a view to identifying specific deficiencies and omissions on the part of the investigating authority.

89. In view of the foregoing, the Court concludes that there has been a violation of Article 3 of the Convention under its procedural aspect.

(b) The applicant’s alleged ill-treatment

(i) General principles

90. The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (see Kudła v. Poland [GC], no. 30210/96, § 90, ECHR 2000-XI).

91. In order for ill-treatment to fall within the scope of Article 3 of the Convention it must attain a minimum level of severity. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25).

92. Where allegations are made under Article 3 of the Convention the Court must apply a particularly thorough scrutiny. Where domestic proceedings have taken place, however, 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. 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 Gäfgen v. Germany [GC], no. 22978/05, § 93, ECHR 2010).

93. In assessing the evidence on which to base a decision as to whether there has been a violation of Article 3 of the Convention, the Court adopts the standard of proof “beyond reasonable doubt”. However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Jalloh v. Germany [GC], no. 54810/00, § 67, ECHR 2006-IX).

(ii) Application of the general principles to the present case

94. The applicant asserted that the people who had abducted him on 17 November 2004 and subjected him to ill-treatment between 17 November and 23 November 2004 were policemen.

95. Having regard to the material in its possession, the Court notes the absence of credible evidence proving that allegation. In such circumstances it is unable to establish beyond reasonable doubt that the applicant was ill-treated by the police, as he alleged (see paragraphs 6, 14 and 85 above).

96. The Court therefore finds no violation of Article 3 of the Convention under its substantive limb.

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

97. The applicant complained, under Article 5 § 1 (c) of the Convention, that his detention on remand after 17 May 2006 had been unlawful. The relevant parts of Article 5 of the Convention read 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:

...

(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 ...”

A. Admissibility

98. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. Submissions by the parties

99. The Government acknowledged that the applicant’s detention after 17 May 2006 had been in breach of the requirements of Article 5 § 1 (c) of the Convention.

100. The applicant took note of the Government’s admission.

2. The Court’s assessment

101. In the circumstances of the present case the Court finds no reason to hold otherwise. It therefore concludes that there has been a violation of Article 5 § 1 (c) of the Convention on account of the applicant’s detention after 17 May 2006.

III. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

102. The applicant complained that his detention on remand had not been based on relevant and sufficient reasons. He relied on Article 5 § 3 of the Convention, which provides as follows:

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial ...”

A. Admissibility

103. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. Submissions by the parties

104. The Government acknowledged that the applicant’s detention on remand had been in breach of Article 5 § 3 of the Convention.

105. The applicant took note of the Government’s admission.

2. The Court’s assessment

106. In the circumstances of the present case the Court finds no reason to hold otherwise. It therefore concludes that there has been a violation of Article 5 § 3 of the Convention.

IV. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (b) OF THE CONVENTION

107. The applicant complained that the criminal proceedings against him had been unfair in that he had not been afforded an opportunity to study the case file in full, including the audio and video tapes and physical evidence, before the case had been submitted to the trial court. The complaint falls to be examined under Article 6 §§ 1 and 3 (b) of the Convention, which, in so far as relevant, read as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...

...

3. Everyone charged with a criminal offence has the following minimum rights:

(b) to have adequate time and facilities for the preparation of his defence; ...”

A. Admissibility

108. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. Submissions by the parties

109. The Government submitted that the applicant had been afforded an opportunity to study the case file in its entirety, including audio and video tapes and physical evidence, both after the termination of the investigation and later in the course of the trial. However, since the applicant and his lawyer had been unreasonably delaying their studying of the case file, the court had limited the time afforded to them for such a purpose. The Government therefore concluded that the criminal proceedings in respect of the applicant had been fair within the meaning of Article 6 of the Convention.

110. The applicant maintained his complaint.

2. The Court’s assessment

(a) General principles

111. The requirements of Article 6 § 3 of the Convention are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6 § 1 of the Convention, and therefore the applicant’s complaints under paragraphs 1 and 3 of Article 6 should be examined together (see Khodorkovskiy and Lebedev v. Russia, nos. 11082/06 and 13772/05, § 573, 25 July 2013, with further references).

112. It is a fundamental aspect of the right to a fair trial that criminal proceedings, including the elements of such proceedings which relate to procedure, should be adversarial and that there should be equality of arms between the prosecution and the defence, which means that both the prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party. The accused must have the opportunity to organise his defence in an appropriate way, without restriction as to the possibility to put all the relevant defence arguments before the trial court and thus to influence the outcome of the proceedings. The facilities which should be enjoyed by people charged with a criminal offence include the opportunity to acquaint themselves, for the purposes of preparing their defence, with the results of investigations carried out throughout the proceedings. The issue of adequacy of time and facilities afforded to an accused must be assessed in the light of the circumstances of each particular case (see Khodorkovskiy and Lebedev, cited above, §§ 574 and 579).

(b) Application of the general principles to the present case

113. The Court notes that following the termination of the pre-trial investigation the defence, including the applicant and his lawyer, was given access to the entirety of the case file on 12 April 2006 (see paragraph 53 above). The case file was withdrawn from the defence on 2 October 2006 (see paragraph 56 above). The Court further notes that subsequently, in the course of the trial, the defence was granted additional time to complete their examination of the case file. Namely, the applicant and his lawyer studied the case file between 4 December and 28 December 2006 and on 5 March 2007 (see paragraphs 60 and 63 above). That means that the defence was allocated a total of six months and fifteen days to study the forty-nine volumes, fifteen audio and video tapes and physical evidence contained in the case file.

114. During that time, the applicant and his lawyer were able to become acquainted with the case file and to prepare the applicant’s defence. In the Court’s view, given the lack of evidence of any unjustified limitations on the applicant’s ability to study the case, the Court concludes that the time afforded by the authorities to the defence for the purpose of studying the case file was not as such insufficient and that the applicant’s rights under Article 6 §§ 1 and 3 (b) of the Convention have not been breached in that respect.

115. There has therefore been no violation of those Convention provisions in the present case.

V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

116. Lastly, the applicant complained under Article 3 of the Convention of the incidents of ill-treatment on 29 November 2004 and 20 July 2005, and of inadequate medical assistance in the remand prison. Under Article 5, he complained of the unlawfulness of his detention prior to 17 May 2006. He also complained under Article 6 of the Convention of a lack of impartiality on the part of the trial court; the refusal of his request for the trial to be recorded; of the admissibility and assessment of evidence by the trial court; the inefficiency of his legal-aid counsel; the lack of a public trial; a breach of the presumption of innocence in his regard; and the failure of the appeal court to give detailed anwers to his arguments. The applicant further complained under Article 1 of Protocol No. 1 to the Convention about the seizure and attachment of his property in the course of the criminal proceedings.

117. However, having regard to all the material in its possession, and in so far as these complaints fall within its competence, the Court finds that there is no appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION

118. 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.”

119. The Court points out that under Rule 60 of the Rules of Court any claim for just satisfaction must be itemised and submitted in writing together with the relevant supporting documents, “failing which the Chamber may reject the claim in whole or in part”.

120. On 21 May 2012 the Court invited the applicant to submit a claim for just satisfaction by 23 July 2012. He did not submit any such claim for the Court to decide.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares admissible

(a) the complaint under Article 3 of the Convention concerning the applicant’s ill-treatment between 17 and 23 November 2004;

(b) the complaint under Article 5 § 1 (c) of the Convention concerning the alleged unlawfulness of the applicant’s detention on remand after 17 May 2006;

(d) the complaint under Article 6 §§ 1 and 3 (b) of the Convention concerning the alleged lack of time for studying the case file;

and inadmissible the remainder of the application;

2. Holds that there has been a violation of Article 3 of the Convention under its procedural aspect;

3. Holds that there has been no violation of Article 3 of the Convention under its substantive aspect;

4. Holds that there has been a violation of Article 5 § 1 of the Convention on account of the applicant’s detention after 17 May 2006;

5. Holds that that there has been a violation of Article 5 § 3 of the Convention;

6. Holds that there has been no violation of Article 6 §§ 1 and 3 (b) of the Convention.

Done in English, and notified in writing on 17 May 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen Phillips Luis López Guerra
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> NEKRASOV v. RUSSIA - 8049/07 (Judgment (Merits and Just Satisfaction) : Court (Third Section)) [2016] ECHR 420 (17 May 2016) URL: http://www.bailii.org/eu/cases/ECHR/2016/420.html Cite as: [2016] ECHR 420