SMOLENTSEV v. RUSSIA - 46349/09 (Judgment : Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect) Violation of Articl...) [2017] ECHR 723 (25 July 2017)

In the case of Smolentsev v. Russia,

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

          Helena Jäderblom, President,
          Luis López Guerra,
          Dmitry Dedov,
          Pere Pastor Vilanova,
          Alena Poláčková,
          Georgios A. Serghides,
          Jolien Schukking, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 4 July 2017,

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

PROCEDURE

1. The case originated in an application (no. 46349/09) 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 Andrey Vladimirovich Smolentsev (“the applicant”), on 8 August 2009.

2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

3. The applicant alleged, in particular, that he had suffered ill-treatment at the hands of the police and that the domestic authorities had failed to conduct a prompt and effective investigation into his complaints.

4. On 22 May 2012 the above complaint was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1976 and lives in Barnaul. He has been disabled since childhood and has lacked legal capacity since 1999. The application was brought on his behalf by his mother.

A. Applicant’s arrest, alleged ill-treatment and criminal proceedings against him

6. At about 5 p.m. on 28 August 2007 the applicant was arrested on suspicion of robbery and taken to Industrialniy district police station, Barnaul (Индустриальный РОВД г. Барнаула, “the Industrialniy ROVD”) by Officers K., S. and Ch., who allegedly beat him when they arrived at the police station.

7. A report on the applicant’s arrest was drawn up at 9 p.m., following which the applicant’s mother was informed about his arrest. She arrived at the police station shortly afterwards. The applicant complained, in the presence of his mother and a lawyer, that he felt unwell and that he had been beaten by the police officers who had arrested him.

8. An ambulance was called to the police station at 10.29 p.m. on 28 August. The applicant was diagnosed as having facial and chest contusions. He told the ambulance medics that he had been physically assaulted by the police.

9. Another ambulance was called for the applicant at 12.24 a.m. on 29 August 2007, to the temporary detention facility. He was diagnosed as having a contusion on the soft tissues of the face and an X-ray examination was recommended. The applicant told the medics that he had injured himself while drunk two days previously after falling down and hitting his head on the ground.

10. The applicant was taken to hospital the same day for the X-ray examination and was diagnosed as having a closed fracture of his nose bones with displacement of bone fragments and a chest contusion. He gave the same explanation for the injuries as he had given previously that day to the ambulance medics at the temporary detention facility.

11. Upon admission to the temporary detention facility, staff seized, among other items, a pledge ticket for a silver chain and cross which were in pawn until 5 September 2007 (worth 4,840 Russian roubles (RUB) and RUB 990 respectively).

12. On 30 August 2007 the Industrialniy District Court of Barnaul (“the District Court”) ordered the applicant to be kept under arrest for an additional forty-eight hours, until 2.30 p.m. on 1 September 2007.

13. On 1 September 2007 the applicant was released.

14. On the same day the District Court granted an application from the investigator to place the applicant in a psychiatric hospital for a psychiatric forensic examination.

15. On 4 September 2007 the applicant was admitted to a psychiatric hospital, where he stayed until 4 October 2007.

16. On 4 October 2007 the report on the forensic psychiatric examination of the applicant was concluded. It established that at the time of the events in question the applicant could understand and take responsibility for his actions.

17. On 11 October 2007 the pawn shop ticket was returned to the applicant.

18. On 9 November 2007 the applicant underwent planned surgery for a fracture of the nose (rhinoplasty).

19. On 17 March 2008 the criminal proceedings against the applicant were discontinued owing to a lack of evidence of his involvement in the crime in question.

B. Investigation of the alleged ill-treatment

20. On 29 August 2007 the applicant’s mother complained to the prosecutor’s office that the applicant had been beaten by the police.

21. On 19 September 2007 a forensic medical expert held that the closed fracture of the applicant’s nose had been caused by a blow from a hard, blunt object with a limited area of impact and that it had resulted in moderately severe health damage. The report went on to say that the injury had occurred shortly before the applicant had sought medical assistance and that it could have been caused on 28 August 2007. The possibility of the injury being caused by a fall or that the applicant had inflicted it on himself was excluded. The diagnosis of a chest contusion was found to be unsubstantiated by the information in the medical documents.

1. Refusals to open criminal proceedings against the police officers

22. On 4 October, 25 November and 24 December 2007, and 1 February and 15 March 2008 the prosecutor’s office refused to institute criminal proceedings against the police officers who had allegedly ill-treated the applicant for lack of the constituent elements of a crime in their actions. The applicant’s statements were found to be contradictory and not consistent with the injuries sustained. The applicant’s mother had not witnessed the alleged beatings and, because the applicant was mentally disabled and had been inebriated when arrested, his statements were assessed in critical fashion. There was also evidence that the applicant had possibly had injuries prior to his arrest. The initial refusal to institute criminal proceedings referred to the following evidence:

- the statements of the applicant’s mother, who submitted that the applicant had had no injuries when he had left home on 28 August 2007 and that she had found him at the police station later that day with a swollen face, bruises on his back and with his clothes covered in blood;

- a statement by the applicant’s mother that on 26 August 2007 she had witnessed a quarrel between her son and a certain Kar., that she had called the police and that the police had helped her take the applicant home;

- statements by a witness, B., who had seen the applicant on 28 August 2007, shortly before his arrest, drunk, but without any visible injuries; B. later saw police officers escorting the applicant to a police car, with the applicant showing no resistance. B. did not see the police officers using physical force against the applicant;

- the applicant’s statements on the circumstances of his arrest. He submitted, in particular, that the beatings had taken place at the back entrance to the police station and in an out-of-the-way office inside the police station; the police officers had hit him with truncheons on his back, bottom and legs (at least four to five blows), and had then punched him on the head and nose (no less than seven to ten blows). The applicant had started bleeding and the officers had threatened him, warning him not to tell anyone about the beatings;

- information on the applicant’s health and his disability, as well as his previous criminal and administrative offence records;

- documents on the applicant’s arrest;

- documents on the ambulance doctors’ examination of the applicant on 28 August 2007 in connection with complaints of a bleeding nose and chest pain;

- the forensic medical report of 19 September 2007 (see paragraph 21 above);

- statements by Officers S. and K. on the circumstances of the applicant’s arrest. In particular, they submitted that when the applicant had seen them he had started to run in the opposite direction. He had stumbled and fallen forward onto the pavement. When they had lifted him up they had noticed that he had old abrasions on the left side of his face and a bleeding nose, probably from falling on the pavement. His breath had also smelt of alcohol. The applicant had then been escorted to the police car and taken to the police station. He had not resisted arrest and no physical force had been applied to him;

- statements by Officer Ch., who had been waiting for S. and K. in the police car. He submitted that he had seen S. and K. escorting the applicant to the car and that the applicant had been visibly drunk. He had had abrasions and dried blood on his face and his clothes had been dirty. No physical force had been used against him;

- statements by police officers on duty at the police station on 28 August 2007 about the absence of any conflict situations there on that day or any complaints of ill-treatment from the applicant;

- statements by Ts., A., D., detained at the police station at the same time as the applicant. They submitted that they had not witnessed any clashes between the applicant and the police and had not seen the police use physical force against him;

- statements by the investigator, N., who had questioned the applicant on 28 August 2007 and to whom he had explained that his injuries (a scratch on the face and a swollen nose) had been sustained while he was drunk, either by falling down or in some other way, the applicant had not remembered exactly. The investigator had later called the applicant’s mother. After she had arrived, the applicant had started complaining that he felt unwell and that he had been beaten by the police, after which an ambulance had been called for him;

- statements by the investigator D., who said that she had questioned the applicant on 31 August 2007 at the temporary detention facility. He had stated that he had been drinking in the courtyard of his house on 26 August 2007 and had picked a fight with a certain Kar., with whom he had drunk before;

- information from the temporary detention facility on the applicant’s injuries at the time of his admission (a closed fracture of the nasal bones and an abrasion on the left cheek) and a handwritten note from the applicant to the effect that he had received the injuries after falling down while in an inebriated state and that he had no complaints about the law-enforcement bodies;

- statements by a certain R., who submitted that on 26 August 2007 the applicant and her husband Kar. had been drinking together and had had a quarrel.

The subsequent decisions also took into account the following evidence:

- statements by Kar., who submitted that he had been drinking alcohol with the applicant on 25 August 2007, that they had been so drunk they could not walk in a straight line and had had to hold to one another, and that on their way home they had fallen down several times. On 26 August 2007 Kar. and the applicant had again spent all day drinking together, but had had no arguments. He could not remember whether the applicant had had any injuries on 25 and 26 August 2007;

- an additional forensic medical report of 18 December 2007 which showed that the injury could have been caused on 26 August 2007 but that it could not have been caused by the applicant’s falling down;

- statements by the doctors who examined the applicant on 28 and 29 August 2007 and performed the X-ray examination and by the expert who conducted the initial forensic medical examination.

23. The supervising authority set aside all those decisions, except for the most recent one, as unfounded and ordered additional pre-investigation inquiries.

2. Institution of criminal proceedings against unidentified persons

24. In the meantime, on 13 December 2007 the chief of inquiries at the investigations department of the Industrialniy ROVD instituted criminal proceedings against unidentified persons under Article 112 § 1 of the Criminal Code for the intentional infliction of moderately severe damage to the applicant’s health at an unidentified place and time, but no later than midnight of 19 September 2007.

(a) Forensic medical examinations conducted in the course of the investigation

25. On 14 February 2008, 11 March 2009, 20 October 2010 and 5 May 2012 forensic medical examinations of the applicant’s medical file were conducted. The conclusions of the examinations showed that the closed fracture of the nose and swelling of the soft tissues in the nasal area could have been caused between 26 August and 28 August 2007. It was not possible to completely exclude the possibility that the above injury had originated as the result of the impact of a slightly protruding object. The injured area was also accessible to the applicant himself. The report of 20 October 2010 excluded the possibility that the applicant had been injured by falling on the pavement while running away from Officers S. and K. given the absence of other injuries on prominent parts of his face (nose, cheekbones or forehead) or on other parts of his body (the stomach or his extremities).

(b) Repeated suspension and resumption of the investigation between 12 January 2008 and 10 May 2012

26. On 12 January 2008 the chief of inquiries at the investigations department of the Industrialniy ROVD decided to suspend the investigation.

27. However, on 29 January 2008 the acting prosecutor of the Industrialniy District of Barnaul set that decision aside. He noted that the case file contained information that police officers at the Industrialniy ROVD had allegedly inflicted the applicant’s injuries and transferred the criminal case from the investigations department of the Industrialniy ROVD to the Barnaul investigations department of the investigation committee of the Altay Regional Prosecutor’s Office.

28. On 11 February 2008 the chief of inquiries at the investigations department of the investigation committee of the Altay Regional Prosecutor’s Office resumed the case.

29. On 13 February 2008 a witness, I., (the victim in the proceedings against the applicant on suspicion of robbery) submitted that when the alleged robbery had taken place, at about 3 p.m. on 28 August 2007, she had noticed that the applicant had an old abrasion on his face. She did not exclude the possibility that she could have scratched the applicant in the course of the struggle, but she had not hit him and had not seen any injuries on his face later that day when she had seen him at the police station.

30. On 16 February 2008 Officer Ch. was questioned as a witness.

31. On 11 April 2008 the proceedings were suspended for the second time. The decision mentioned that the operational-search activities conducted to identify the perpetrator of the assault had not led to any positive results. It provided no further details on the exact measures taken by the investigator.

32. On 16 April 2008 the deputy head of the investigations department set that decision aside and held that it was necessary to give the applicant victim status in the proceedings and question him. He also wanted to give the applicant’s mother the status of the applicant’s legal representative and question her, to carry out a comprehensive psychological and psychiatric examination of the applicant, to question a number of witnesses on the circumstances of the alleged ill-treatment (among them Officer S.), and to join references from work on Officers K., S. and Ch. to the case file.

33. On 17 April 2008 the applicant was given the status of a victim in the proceedings and was questioned as such. The applicant’s mother joined the proceedings as his legal representative and was questioned.

34. On 19 May 2008 the proceedings were suspended for the third time, with reference to the fact that the operational-search activities to identify the perpetrator had not led to any positive result. However, on 21 May 2008 the deputy head of the investigations department set that decision aside and held that it was necessary to question the witnesses to establish all the relevant circumstances of the alleged ill-treatment.

35. Between May and August 2008 the head of the Industrialniy ROVD and the officers present there at the time of the applicant’s arrest were questioned as witnesses.

36. Meanwhile, on 26 June 2008 a fourth decision on suspending the proceedings was taken. However, on 2 July 2008 the deputy head of the investigations department set the decision aside and listed in detail the investigative measures that were needed. They included questioning the police officers S., K. and Ch. about the circumstances of the applicant’s arrest, a forensic psychiatric examination of the applicant and, depending on the results of that examination, deciding on the possibility of carrying out identification parades involving the applicant and S., K. and Ch.

37. On 7 August 2008 Officer K. was questioned as a witness.

38. The proceedings were suspended for the fifth time on 14 September 2008, but were again resumed on 29 September 2008. The acting head of the investigations department considered it necessary, inter alia, to put further questions to certain witnesses. He also wanted to carry out a comprehensive psychological and psychiatric forensic examination of the applicant and, depending on the results of that examination, to decide on the possibility of carrying out identification parades involving the applicant and S., K. and Ch. In addition, he wanted to request documents on the applicant’s hospital treatment after 4 September 2007 and join them to the case file and to carry out an additional forensic medical examination.

39. On 23 October 2008 another witness, D., (an acquaintance of the applicant’s mother) stated that he had seen the applicant’s arrest on 28 August 2007. The applicant had been escorted by two people - one wearing a police uniform and the other in plain clothes. The applicant had not shown any resistance, had had no visible injuries and had not been subjected to physical force.

40. On 28 October 2008 the applicant had an additional forensic psychiatric examination, which established that at the time of the alleged beatings he could not correctly perceive the factual aspect of events or understand the meaning and nature of actions taken in his respect.

41. On 30 October and 8 November 2008 two witnesses, Z. and M., stated respectively that they had seen the applicant on 28 August 2007, shortly before his arrest, that he had been dressed tidily and had had no injuries on his body or blood stains on his clothes. They had later seen him being escorted by two police officers to a police car, the applicant had acted calmly, his clothes had been tidy and no physical force had been applied to him. A similar statement was made by the witness B.

42. On 14 November 2008 the investigator decided to suspend the proceedings for the sixth time. He relied on the results of the applicant’s forensic psychiatric examination of 28 October 2008 and therefore the impossibility for the investigation to rely on his statements, as well as the absence of eyewitnesses of the circumstances in which the applicant had received his injuries. However, on 30 December 2008 the District Court found that decision unlawful and unsubstantiated.

43. On 12 February 2009 the proceedings were resumed, only to be suspended for the seventh time on 12 March 2009 for the same reasons as given in the decision of 14 November 2008. However, on 7 April 2009 the District Court found the decision of 12 March 2009 unlawful and unsubstantiated, and on 14 May 2009 the proceedings were again resumed.

44. On 15 June 2009 the proceedings were yet again suspended. The decision said that the applicant’s statement about his alleged ill-treatment by the police officers S., K. and Ch. could not be admitted as evidence in view of the results of the forensic psychiatric examination of 28 October 2008. The applicant’s mother’s statements had derived from those of the applicant himself. There was no direct evidence proving that the applicant had sustained his injuries at the hands of S., K. and Ch. The fact that those officers had arrested the applicant and taken him to the Industrialniy ROVD had not proved that they had been involved in the alleged ill-treatment. Exhaustive measures had been taken to establish the time the applicant had sustained his injuries. The witnesses B., D. and Z., who had seen the applicant’s arrest, had stated that they had not seen the police officers use any physical force against him.

45. On 12 January 2010 the proceedings were resumed and subsequently suspended for the ninth time on 15 February 2010. The investigation established that on 28 August 2007 the applicant had been taken to the Industrialniy ROVD by Officers S., K. and Ch. The applicant had complained that those officers had beaten him after his arrest. According to the forensic medical examination of 14 February 2008, the applicant had had a closed fracture of bones in the nose and swelling of the soft tissues in the nasal area, which had been caused by the impact of a hard, blunt object and could have occurred between 26 August and 28 August 2007. The investigation had not confirmed any fact of ill-treatment of the applicant by S., K. and Ch. That was in accordance with the statements by the police officers, who had denied inflicting any injuries on the applicant, the witnesses who had seen the applicant’s arrest, the records of identification parades and other evidence. There had been no other evidence attesting directly to the fact that a crime had been committed by the police officers. In addition, the decision reiterated that the applicant’s statements could not be relied on in view of the results of the forensic psychiatric examination of 28 October 2008 and could not be a basis for bringing charges against the police officers. The mother’s statements had derived from those of the applicant and therefore could not be relied on either.

46. On 27 April 2010 the District Court found the decision of 15 February 2010 unlawful and unsubstantiated and on 1 June 2010 the proceedings were again resumed.

47. On 8 June 2010 P., an expert in psychiatry - a doctor of medical sciences and a professor - was questioned as a witness. He submitted that the conclusions of the psychiatric expert examination of 28 October 2008 on the applicant’s mental state at the time of the events in question were more consistent and reliable than those of the applicant’s previous psychiatric expert examination on 4 October 2007.

48. On 11 June 2010 the proceedings were suspended for the tenth time. The decision referred to the applicant’s arrest on 28 August 2007, his statement as to the alleged ill-treatment by the police officers S., K. and Ch., the results of the forensic medical examination of 14 February 2008 with a description of his injuries and the time they were inflicted, and the police officers’ denial of the alleged ill-treatment.

49. Proceedings were resumed on 12 July 2010. Formal confrontations were carried out between the witnesses B. and Z., Officer K. and Z., Officer Ch. and Z., the applicant and the investigator N., the applicant’s mother and N., the applicant and the police officer who had taken him from the Industrialniy ROVD to the temporary detention facility and had allegedly threatened him on their way there by warning him not to tell anyone about the beatings, and the applicant and Officer K.

50. On 19 July 2010 the proceedings were suspended for the eleventh time. The decision noted that it had been impossible to reconcile the statements of the police officers and the witnesses as to whether the applicant had had any injuries on his face at the time of his arrest. However, on 31 August 2010 the District Court found that decision unlawful and unjustified and the proceedings resumed again on 19 October 2010.

51. On 21 August 2010 another police officer, S., was questioned as a witness (the case file contains no earlier record, if any, of the questioning of S. as a witness).

52. The proceedings were again suspended on 26 October 2010, 14 January, 10 February and 17 February 2011, and resumed respectively on 12 January, 8 February, 15 February and 7 April 2012. In addition to the previously collected evidence, the decisions on suspension relied on:

- statements by the investigator N.;

- statements by Ts., D. and Yer., detained at the police station at the same time as the applicant;

- a radiology laboratory assistant K. and the radiologist R.;

- an expert, Kl., on the nature of the applicant’s injuries;

- statements by Kar.;

- a statement by the witness, S., who submitted that she had seen a fight between the applicant and the witness I., but that she had not seen any injuries on the applicant’s body at that time;

- Kr., who submitted that she had seen no injuries on the applicant on 26 August 2007 and that when she had seen him on 1 September 2007 he had had a swollen nose. He had had no other visible injuries;

- a statement by the officer on duty at the temporary detention facility, P., who called an ambulance for the applicant on 29 August 2007;

- the ambulance medics who examined the applicant on 28 August and 29 August 2007, but who could not remember any circumstances of value to the investigation given the length of time since the events in question;

- the neurosurgeon R., who examined the applicant on 29 August 2007 at the hospital and submitted that he could have received his injuries several days prior to the examination;

- the lawyer M., present at the applicant’s questioning at the police station on 28 August 2007. Owing to the passage of time, he could not remember whether the applicant had any visible injuries or if he had told him anything about the circumstances of the alleged beatings.

53. On 10 May 2012 the proceedings were suspended for the sixteenth and last time. Taking into account the evidence that had been collected, the investigating authority came to the conclusion that the applicant had received his injuries no later than 10.37 p.m. on 28 August 2007 (the time of his examination by ambulance medics at the Industrialniy ROVD). However, it was impossible to make an objective and reliable conclusion as to the exact time and circumstances of the injuries. The results of the applicant’s psychiatric expert examination precluded the investigating authority from relying on the applicant’s submissions as evidence and there was no other evidence proving beyond doubt that his injuries had been inflicted in the circumstances he had described. In addition, the experts had arrived at the conclusion that the injury could have been caused anytime between 26 August and 28 August 2007.

C. Applicant’s attempts to have criminal proceedings instituted against a trainee police officer, I., and police officers A. and B.

54. According to the applicant, while the investigator was questioning him as a suspect on 28 August 2007, a trainee police officer, I., had taken the keys to his flat and had gone there and searched his room. A gold bracelet had allegedly gone missing after the search.

55. According to the applicant, Officers A. and B. had allegedly threatened him on the same day, warning him not to reveal that he had been beaten at the police station and to say instead that he had injured himself several days before in a fight.

56. From 2008 the applicant’s mother sought to have criminal proceedings instituted against I. and Officers A. and B. for abuse of position.

57. The investigator refused several times to institute criminal proceedings.

58. The most recent refusal to institute criminal proceedings against I. is dated 15 October 2009. On 10 December 2009 the Altay Regional Court found at final instance that the aforementioned decision was lawful and justified. It had been established that the applicant’s mother had let I. into the flat, answered his questions, and had then let him into the applicant’s room and helped him search it. It had also been established that the disappearance of a gold bracelet had been alleged long after the events complained of. For those reasons, there could not reasonably have been an expectation that the incident would be investigated.

59. The most recent refusal to institute criminal proceedings against A. and B. is dated 31 May 2010. The inquiry found no evidence to support the applicant’s allegations. There is no information in the case file as to whether the applicant challenged the lawfulness of that decision in court.

D. Civil proceedings for damages

60. The applicant’s mother brought civil proceedings against the Ministry of Finance on behalf of herself and the applicant, seeking compensation for non-pecuniary damage caused by the unlawful prosecution of the applicant and the resulting medical treatment. She also sought compensation for pecuniary damage, representing the cost of the silver chain and cross which could not be recovered from the pawnshop and other costs and expenses.

61. On 10 March 2010 the District Court granted the claim in part and ordered the Ministry of Finance to pay the applicant RUB 15,000 for the non-pecuniary damage caused by his unlawful prosecution. It refused the claim for recovery of the cost of the silver chain and cross, holding that the mother, as the applicant’s legal representative, could have recovered them from the pawnshop herself.

62. On 21 April 2010 the Altay Regional Court upheld the above judgment on appeal, increasing the amount awarded in respect of non-pecuniary damage to RUB 40,000. The court further held that the applicant’s mother had failed to submit any evidence that she had asked the investigator to return the pawnshop pledge ticket and that such a request had been refused.

II. RELEVANT DOMESTIC LAW

63. For a summary of the relevant domestic law on the prohibition of torture and other types of ill-treatment and the procedure for examining a criminal complaint see Manzhos v. Russia (no. 64752/09, §§ 21-27, 24 May 2016).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

64. The applicant complained that he had been ill-treated by the police and that no effective investigation had been carried out into his complaint. He 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.”

65. The Government supported the conclusions of the domestic investigating authority and submitted that there had been no violation of the applicant’s rights under Article 3.

A. Admissibility

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

B. Merits

1. The State’s obligation to conduct an effective investigation

(a) General principles

67. The Court reiterates that where an individual makes a credible assertion that he or she has suffered treatment infringing Article 3 at the hands of the police or other similar agents of the State, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. That investigation should be capable of leading to the identification and - if appropriate - punishment of those responsible. Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice, and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV, and Armani Da Silva v. the United Kingdom [GC], no. 5878/08, § 233, 30 March 2016).

68. The investigation into serious allegations of ill-treatment must be both prompt and thorough. The authorities must always make a serious attempt to find out what happened, and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis of their decisions. They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence. 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 (see Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08, § 322, ECHR 2014 (extracts), and Kopylov v. Russia, no. 3933/04, § 133, 29 July 2010). Furthermore, the investigation must be independent, impartial and subject to public scrutiny (see Mesut Deniz v. Turkey, no. 36716/07, § 52, 5 November 2013). It should result in a reasoned decision to reassure a concerned public that the rule of law has been respected (see, mutatis mutandis, Kelly and Others v. the United Kingdom, no. 30054/96, § 118, 4 May 2001).

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

69. The Court observes that on 29 August 2007 the applicant’s mother, acting as the applicant’s legal representative, complained to the prosecutor’s office that on 28 August 2007 her son had been subjected to ill-treatment at the Industrialniy ROVD. The matter was, hence, duly brought before the competent authorities at a time when they could reasonably have been expected to investigate the circumstances in question.

70. The complaint was substantiated by reference to reports on the applicant’s examination by ambulance paramedics on 28 August and 29 August 2007 and an examination at the hospital on 29 August 2007, attesting to a closed fracture of the nose bones with displacement of fragments and a chest contusion (see paragraphs 8-10 above). The claim was therefore shown to be “arguable” and the domestic authorities were placed under an obligation to conduct an effective investigation satisfying the above-mentioned requirements of Article 3 of the Convention.

71. The Court notes that in the period between 4 October 2007 and 15 March 2008 the domestic authorities carried out five rounds of “pre-investigation inquiries” into the applicant’s complaint under Article 144 of the Russian Code of Criminal Procedure (проверка по заявлению о преступлении). During that period, the domestic authorities took five decisions to refuse the institution of criminal proceedings against police officers for lack of the constituent elements of a crime in their actions. In the meantime, however, on 13 December 2007 criminal proceedings were instituted against unidentified persons for the intentional infliction of moderately severe damage to the applicant’s health.

72. The Court found in Lyapin v. Russia (no. 46956/09, 24 July 2014) that in cases of credible allegations of treatment proscribed under Article 3 of the Convention, it was incumbent on the authorities to open a criminal case and conduct an investigation, a “pre-investigation inquiry” alone not being capable of meeting the requirements of an effective investigation under Article 3 (ibid., §§ 128-40). It further found in Razzakov v. Russia (no. 57519/09, 5 February 2015) that a delay in commencing a criminal investigation into credible assertions by the applicant (in that case amounting to five months) had had an unavoidable and significant adverse impact on the investigation, considerably undermining the investigating authority’s ability to secure evidence of the alleged ill-treatment (ibid., § 61).

73. The Court observes that in the present case the delay in opening a criminal case related to the applicant’s complaint of ill-treatment amounted to over three months. The proceedings were subsequently suspended on sixteen occasions in the period between 12 January 2008 and 10 May 2012 on the grounds of it being impossible to identify those responsible for the applicant’s injuries, and they appear to be ongoing to the present day (see paragraphs 26-53 above). Several initial decisions suspending the proceedings were taken without basic investigative measures to establish the circumstances of the alleged ill-treatment (see paragraphs 26, 31, 34, 36 and 38 above). In particular, the applicant was not given victim status and questioned as a victim until four months after the institution of criminal proceedings (see paragraph 33 above). The police officers whom the applicant indicated as the alleged perpetrators were questioned quite late in the proceedings: Officer Ch. was questioned two months after the institution of criminal proceedings, Officer K. almost eight months after and Officer S. two years and eight months after the institution of criminal proceedings (see paragraphs 30, 37 and 51 above). The questioning of other witnesses who had seen the applicant during his arrest and of those who had seen him at the police station thereafter was not carried out with due swiftness either (see paragraphs 35, 39 and 41 above). It took the domestic authorities over a year and seven months to address the contradictory results of the applicant’s psychiatric expert examinations of 4 October 2007 and 28 October 2008 (see paragraph 47 above).

74. Regard being had to the foregoing, the Court finds that the three-month delay in opening a criminal case in connection with the applicant’s allegations of being beaten by the police officers at Industrialniy ROVD and the subsequent handling of the criminal proceedings, which are still going on ten years after the events complained of, show that the authorities failed in their obligation to conduct an effective investigation of the applicant’s allegations of police assault.

75. Accordingly, there has been a violation of Article 3 of the Convention in its procedural aspect.

2. The applicant’s alleged ill-treatment

(a) General principles

76. 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; see also Bouyid v. Belgium [GC], no. 23380/09, § 81, ECHR 2015).

77. In order for ill-treatment to fall within the scope of Article 3 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).

78. 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).

79. In assessing the evidence on which to base a decision as to whether there has been a violation of Article 3, the Court adopts the standard of proof “beyond reasonable doubt”. 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).

80. Where an individual is taken into police custody in good health and is found to be injured on release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which a clear issue arises under Article 3 (see Ribitsch v. Austria, 4 December 1995, § 34, Series A no. 336, and Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999-V).

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

81. The Court observes that on 28 August 2007 the applicant was arrested and taken to the Industrialniy ROVD, where he was allegedly ill-treated by police officers. On the same day an ambulance was called to the police station for the applicant and, several hours later on the following day, one was called to the temporary detention facility and the applicant was found to have face and chest contusions. On 29 August 2007 the applicant was taken to hospital for an X-ray, which showed that he had a closed fracture of the nose bones with displacement of fragments (see paragraphs 8-10 above).

82. The Court also observes that after six forensic medical examinations experts concluded that the closed fracture of the applicant’s nose and the swelling of the soft tissue in the nasal area could have been caused between 26 August and 28 August 2007; that it could not be completely excluded that the above injury had originated as the result of the impact of a limited protruding object; and that the injured area had also been accessible to the applicant himself. The experts excluded the possibility that the applicant had injured himself by falling on the pavement while running away from Officers S. and K. (as alleged by them) given the absence of any other injuries on prominent parts of his face (nose, cheekbones, forehead) or any other parts of his body (see paragraphs 21, 22 and 25 above).

83. The Court considers that the medical evidence, along with the allegation that the ill-treatment took place while the applicant was in police custody, created a presumption of fact that the applicant was subjected to ill-treatment at the hands of State agents. That required the Government to provide a satisfactory and convincing explanation as to how the applicant’s injuries could have been caused.

84. On the basis of all the material placed before it, the Court finds that neither the authorities at the domestic level nor the Government in the proceedings before the Court have advanced any explanation as to the origin of the applicant’s injuries. The Court concludes therefore that the Government have not satisfactorily established that the applicant’s injuries were caused in any other way than by the alleged treatment he suffered at the hands of the police officers on the premises of the Industrialniy ROVD.

85. Accordingly, having regard to the nature of the applicant’s injuries, the Court concludes that the State is responsible under the substantive aspect of Article 3 on account of the inhuman and degrading treatment to which the applicant was subjected while in the Industrialniy ROVD.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

86. The Court has examined the rest of the complaints submitted by the applicant. However, having regard to all the material in its possession, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

87. 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. Damages

88. The applicant claimed 60,000 euros (EUR) in respect of pecuniary damage (including medical expenses, photocopying, postal and translation expenses, lawyer’s fees, and telephone and travel expenses) and EUR 130,000 in respect of non-pecuniary damage.

89. The Government submitted that the applicant’s claim in respect of pecuniary damage was unsubstantiated and that his claim for non-pecuniary damage was excessive. They argued that any finding of a violation by the Court would in itself constitute sufficient just satisfaction.

90. The Court reiterates that there must be a clear causal connection between the pecuniary damage claimed by an applicant and the violation of the Convention found (see, among other authorities, Çakıcı v. Turkey [GC], no. 23657/94, § 127, ECHR 1999-IV). In that connection, the Court first of all notes its finding of a violation of Article 3 of the Convention on account of the police’s ill-treatment of the applicant. Furthermore, it has regard to the medical documents submitted by the applicant, confirming that he had surgery for his injury (see paragraph 18 above) and incurred related medical expenses. The Court finds that there is a clear causal connection between the treatment for the injury sustained by the applicant and the violation of Article 3 of the Convention found above. Having regard to the documents in its possession, the Court awards the applicant EUR 500 in that regard.

91. The Court considers it appropriate to deal with the photocopying, postal and translation expenses, lawyer’s fees, and the telephone and travel expenses claimed by the applicant under the head of costs and expenses.

92. In so far as non-pecuniary damage is concerned, the Court notes that it has found a violation of the applicant’s right under Article 3 of the Convention not to be subjected to inhuman or degrading treatment. In those circumstances, the Court considers that the applicant’s suffering and frustration cannot be compensated for by a mere finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 20,000 in respect of non-pecuniary damage.

B. Costs and expenses

93. As mentioned above (see paragraph 88 above), the applicant claimed costs and expenses incurred in the domestic proceedings and in the proceedings before the Court.

94. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,000, covering costs under all heads.

C. Default interest

95. 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 complaint under Article 3 of the Convention 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 and procedural limbs;

3. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 500 (five hundred euros), plus any tax that may be chargeable, in respect of pecuniary damage;

(ii) EUR 20,000 (twenty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(iii) EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 25 July 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı Helena Jäderblom
Deputy Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> SMOLENTSEV v. RUSSIA - 46349/09 (Judgment : Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect) Violation of Articl...) [2017] ECHR 723 (25 July 2017) URL: http://www.bailii.org/eu/cases/ECHR/2017/723.html Cite as: CE:ECHR:2017:0725JUD004634909, ECLI:CE:ECHR:2017:0725JUD004634909, [2017] ECHR 723