FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 66688/01
by Sergey Leonidovich TOPORKOV
against Russia
The European Court of Human Rights (First Section), sitting on 27 November 2008 as a Chamber composed of:
and ,
Having regard to the above application lodged on 28 July 2000,
Having regard to the decision to examine the admissibility and merits of the case together (Article 29 § 3 of the Convention),
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Sergey Leonidovich Toporkov, is a Russian national who was born in 1968. He is serving a prison sentence in a correctional colony in the Kirov Region. He was represented before the Court by Ms K. Kostromina, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr P. Laptev, the former Representative of the Russian Federation at the European Court of Human Rights.
A.  The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1.  The applicant’s arrest and alleged ill-treatment in March 1999
On 9 March 1999 police officers entered the applicant’s flat and took him to the Internal Affairs Department of the Kirov Region. On their way they allegedly beat the applicant up to force him to confess to a robbery. Upon arrival the applicant was allegedly handcuffed, ordered to undress, beaten and threatened with being raped with a rubber truncheon. However, he made no admissions. In the evening of the same day he was transferred to the Kirov town temporary confinement ward. It appears that upon admission he was examined by the facility’s doctors, who did not note any injuries on his body. It also appears that the applicant did not complain to them about the alleged ill-treatment. On 12 March 1999 the applicant was brought to the prosecutor, who refused to remand him in custody. The applicant was released on a written undertaking not to leave the town.
On 15 March 1999 the applicant was examined by a generalist and a surgeon in the Kirov town hospital. They diagnosed him with an injury in the lumbar region.
The applicant presented the following description of those events contained in an excerpt from an undated letter to an unidentified addressee:
“...On 9 March 1999 police officers of the special unit [of the Internal Affairs Department] came to my flat..., told me to dress and started searching the flat... On the way to the department, in the back seat of a passenger car, they beat me up. At the [Internal Affairs] Department they immediately started beating me up, demanding that I confess to the above described crimes. Then, in an office, while I was wearing handcuffs and was almost unconscious, they undressed me, put a knitted hat on my head, laid me on the table and wanted to insert a truncheon into my anus ...They did not do it because I told them that I had had haemorrhoids for the last eight years. There were many police officers in the office, investigator Bezdenezhnykh was also present there. Then they allowed me to dress and at 4 p.m. I was presented for a confrontation with K. ...In the evening I was brought to the temporary confinement ward of the town of Kirov, where I spent two days, after which I was taken to the prosecutor of the town of Kirov A.I. Shuklin [who] refused to authorise my placement in custody. .. I was released and immediately applied to a hospital where a surgeon and a generalist examined me and recorded my injuries in my medical file; I stayed at home for a week recovering...”
The applicant submitted a copy of a letter from the deputy head doctor of the town hospital, dated 6 May 2000 and addressed to the applicant’s lawyer, which reads as follows:
“In response to your request of 5 May 2000,... the administration of the... hospital informs that Toporkov Sergey Leonidovich [the applicant], ...indeed, applied to it on 15 March 1999.
Copies of the records made on 15 March 1999:
15 March 1999. On 10 March 1999 was beaten up at the police station. Since then... pain in the right lumbar and subcostal region... The abdomen soft, moderately painful in the right subcostal region. Palpation of the muscles of the lumbar region on the right painful. Diagnosis: injury of the lumbar region? Consultation by a surgeon...
15 March 1999. Surgeon.
Beaten up by police officers on 10 March. Pain in the right lumbar region.
Objectively: pain during tapotement.
Diagnosis: injury of the lumbar region...”
2.  Arrest and alleged ill-treatment in April 1999
On 27 April 1999 investigator Bezdenezhnykh of the Internal Affairs Department summoned the applicant to the Kirov police station for a confrontation with a suspect in a robbery case. The applicant denied involvement in the robbery. Despite a prosecutor’s refusal to place the applicant in custody, he was allegedly detained overnight at the police station. He spent the night sitting on a chair handcuffed to a radiator.
On 28 April 1999 the applicant was identified by a victim as the robber.
On the same day the prosecutor authorised the applicant’s detention and he was remanded in custody.
On 29 April 1999 the applicant hired a lawyer, Ms O.
3.  Complaints about the alleged ill-treatment
On an unspecified date in June 1999 the applicant complained of ill-treatment to the Kirov Town prosecutor’s office.
On 21 June 1999 the Kirov town deputy prosecutor refused to institute criminal proceedings against the police officers, giving the following reasons:
“...On 10 June 1999 the Kirov Town prosecutor’s office received a complaint by [the applicant]...in which he complains about unlawful methods of investigation on the part of the officers [Mr] Sh. and [Ms] Bezdenezhnykh of the Internal Affairs Department, consisting in exerting upon him physical and mental pressure with a view to obtaining his confession...in the case where he stands accused...[The applicant] contests his guilt and requests to be released from custody.
...Further [the applicant] indicates that on 10 March 1999 he was unlawfully detained... On the way to the [Internal Affairs] Department he was beaten, the beatings continued upon arrival, he was humiliated... Everything happened in the presence of investigator Bezdenezhnykh...
In his explanation officer M. submits that he participated in [the applicant’s] arrest... On the way to the [Internal Affairs Department] there was no need to apply physical force to him because he had voluntarily agreed to follow the officers. In the building of the [Internal Affairs Department] he [M.] had a short conversation with [the applicant] until investigator [Bezdenezhnykh] freed herself [to interview the applicant]. However, [M.] did not apply [to the applicant] physical or mental pressure, did not humiliate or debase him, was not personally or professionally interested in finding [the applicant] guilty because [M.] did not know the applicant and works on cases which do not involve him...
Senior officer U. confirmed that he had sent his subordinates, in particular M., to arrest [the applicant], but he himself had not talked to him.
Investigator Bezdenezhnykh explained that she had been in charge of the criminal case involving [the applicant] and others. On 9 March 1999 she ordered his arrest under Article 122 of the RSFSR Code of Criminal Procedure who had been conveyed to her by police officers of the Internal Affairs Department... She did not see any injuries on [the applicant’s body]. He did not complain to her about being beaten on the way to the department. In her presence none of the police officers of the department pressured [the applicant physically or mentally]...As the prosecutor refused to authorise his detention, [the applicant] was released on a written undertaking not to leave the town...
According to a report from the temporary confinement ward where [the applicant] was held from 9 to 11 March 1999, he did not request medical assistance and had no bodily injuries...
An excerpt of the [the applicant’s] medical file provides that on 15 March 1999 he applied to a generalist with complaints about beatings in police on 10 March 1999... However, it is impossible reliably to attribute [the applicant’s] injuries to [the acts] of the police officers because on 10 March 1999 he was held in the Internal Affairs Department where medical assistance is available but he did not request it. Furthermore, four days elapsed between his release from the detention facility on 11 March 1999 and his application to the hospital. [During those days] he could have sustained the injury under other circumstances and the physician did not state the date when they had been sustained.
The analysis of the above-mentioned results of inquiry refutes [the applicant’s] submission that he had been subjected to unlawful methods of investigation and indicates that he tries to mislead the prosecutor’s office and the judiciary as to his guilt.
Thus, there is no evidence of corpus delicti in the acts of police officers of the Internal Affairs Department and investigator Bezdenezhnykh...”
The prosecutor also dismissed as unfounded the applicant’s complaint about handcuffing on the night of 27 April 1999.
The applicant did not challenge the prosecutor’s decision before the courts.
4.  The applicant’s trial
In September 1999 the criminal case against the applicant was referred for trial to the Oktyabrskiy District Court of the Kirov Region. During the trial the applicant complained, among other things, of ill-treatment by the police.
On 23 November 1999 the District Court convicted the applicant of robbery and theft and sentenced him to twelve years’ imprisonment. In finding the applicant guilty the District Court relied on the statements given by the applicant’s co-accused, the victims and the other physical evidence. The court dismissed the applicant’s complaint of ill-treatment in the following terms:
“The court cannot agree with the arguments of the defendants K., O. and [the applicant] that during the preliminary investigation police officers exercised psychological or physical pressure on them. As was mentioned earlier, the Kirov Town prosecutor’s office conducted thorough inquiries in respect of the police officers and [the defendants’] allegations proved to be unfounded, which was reflected in [the prosecutor’s office’s] decisions. Moreover, the court questioned as witnesses officers Sh., U., M. and Bezdenezhnykh who had participated in the preliminary investigation and testified to the court that they had not applied any unlawful methods to the defendants. The Court has no reasons to doubt their testimonies because, among other things, they had been warned about their criminal responsibility for perjury or refusal to testify under Articles 307 and 308 of the Criminal Code. Besides, as transpires from the case file, none of the defendants, except [the applicant], [complained of ill-treatment] before the opening of the trial...”
The applicant appealed against the judgment of 23 November 1999, maintaining, among other things, that the policemen had ill-treated him.
On 22 February 2000 the Kirov Regional Court upheld the judgment.
COMPLAINTS	
The applicant complained under Article 3 of the Convention that on 9 March 1999 the police officers had beaten him and threatened him with rape and that on 27 April 1999 they had subjected him to degrading treatment.
He complained under Article 13 of the Convention that he had not had an effective remedy in respect of his complaints about the alleged ill-treatment because the prosecutor’s related investigation had been ineffective.
He further complained under Article 5 of the Convention that he had been unlawfully detained on 27 April 1999.
Finally, the applicant complained under Article 6 §§ 1 and 2 of the Convention that the courts had convicted him on the basis of the unlawfully obtained evidence, in particular, statements from his co-defendants, and a confused statement by the victim, and that they had erred in their assessment of the evidence against him.
THE LAW
1.  The applicant complained that he had been beaten by police officers on 9 March 1999 and exposed to degrading treatment on 27 April 1999, in breach of Article 3 of the Convention. He also submitted under Article 13 of the Convention that he had been deprived of effective remedies because the investigation of the ill-treatment had been ineffective. Articles 3 and 13 of the Convention provide as follows:
Article 3
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Article 13
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The Government submitted that the applicant had failed to exhaust domestic remedies in that he had not challenged the refusal to open a criminal case before a higher prosecutor, the Ministry of the Interior or a court, the latter possibility being expressly provided for by the Constitutional Court in its ruling of 29 April 1998. As an alternative, they submitted that the applicant’s allegations of ill-treatment were unfounded for the reasons stated in the prosecutor’s decision of 22 June 1999. The Government claimed that they could not furnish a copy of the investigation file in respect of the applicant’s complaint of ill-treatment because it had been destroyed on 4 April 2005 due to the expiration of its three-year retention period. They submitted a certificate from the Kirov town prosecutor’s office to that effect.
The applicant asserted that he had exhausted the domestic remedies because he had complained to prosecutors and had raised the issue of the alleged ill-treatment at his trial. All his attempts to bring the perpetrators to justice had been unsuccessful. The domestic authorities had only questioned the police officers and had accepted their statements, whereas witnesses who could have testified that he had complained about pain in the lumbar region upon his release from custody (his wife, mother and the doctors who had examined him) had not been questioned during the prosecutor’s inquiry or at the trial. As to the merits, the applicant claimed that the injuries noted in his medical file proved that he had been ill-treated. He also stated that he had applied to the hospital only on Monday, 15 March 1999 because he had been released on the Friday and during the weekend only duty doctors would be present at the hospital.
The Court considers, in the light of the parties’ submissions, that the complaints raise complex issues of fact and law under the Convention, the determination of which requires an examination of the merits. Regard being had to the parties’ observations, the Court also considers that the question of exhaustion of domestic remedies is closely linked to the substance of the applicant’s complaints and should be joined to the merits. Consequently, the Court concludes that the complaints cannot be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.

2.  The applicant further complained under Article 5 of the Convention that he had been unlawfully detained on 27 April 1999.
The Court notes that the relevant period of the applicant’s detention had ended on 28 April 1999, while he lodged the complaint with the Court on 28 July 2000, that is more than six months later. Nothing in the file suggests that any decisions on the detention were taken after that second date.
It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

3.  The applicant also complained under  6 §§ 1 and 2 of the Convention about various irregularities in the criminal proceedings against him.
The Court observes that it has no evidence before it to indicate that the applicant raised on appeal the complaint about the admission of the statements of his co-defendants. As to the remainder of the applicant’s submissions under Article 6, the Court reiterates that it is not its task to deal with errors of fact or law allegedly committed by a national court (see  [GC], no. 30544/96, § 28, ECHR 1999-I). Regard being had to the materials in its possession, the Court does not find any indication of a violation of Article 6 of the Convention.
It follows that this part of the application must be rejected in accordance with Article 35 §§ 1, 3 and 4 of the Convention.
In view of the above, it is appropriate to discontinue the application of Article 29 § 3 of the Convention.
For these reasons, the Court unanimously
Joins to the merits the Government’s objection concerning the exhaustion of domestic remedies in respect of the applicant’s complaints under Articles 3 and 13 of the Convention about the ill-treatment and the investigation;
Declares admissible, without prejudging the merits, the applicant’s complaints under Articles 3 and 13 of the Convention about the alleged ill-treatment and the investigation;
Declares inadmissible the remainder of the application.
	Søren Nielsen	Christos Rozakis
	Registrar	President