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FIRST
SECTION
CASE OF ANTROPOV v. RUSSIA
(Application
no. 22107/03)
JUDGMENT
STRASBOURG
29 January
2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Antropov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Dean Spielmann,
Sverre Erik
Jebens,
Giorgio Malinverni,
George Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 8 January 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 22107/03) 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 Dmitriy Viktorovich
Antropov (“the applicant”), on 28 May 2003.
- The
Russian Government (“the Government”) were represented by
Ms V. Milinchuk,
former Representative of the Russian Federation at the European Court
of Human Rights.
- The
applicant alleged, in particular, that during his pre-trial detention
after being charged with murder the police officers had handed him
over to the family of the victim, who had tortured him. He
furthermore complained that his allegations of torture have not been
adequately investigated. He also alleged that he had been detained in
appalling conditions in the pre-trial detention facility.
- On
26 March 2007 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1971 and lives in Ussuriysk, Primorye Region.
A. Criminal proceedings and the alleged ill-treatment
- On
8 February 2001 the applicant, then a military officer, was detained
on suspicion of having committed theft of spare parts for military
ammunition and the murder of his accomplice G. His initial
questioning was conducted without a lawyer because the applicant had
signed a waiver stating that he was aware of his right to legal
assistance and that his refusal was not due to financial reasons.
- On
16 February 2001 legal aid counsel was appointed to represent the
applicant in the criminal proceedings.
- From
that date the applicant was detained in the Ussuriysk IZ-25/2
detention facility. During the first months of his detention he sent
a number of letters to the prosecutor's office complaining about the
lack of progress in his criminal case and various procedural
violations on the part of the investigator. In his letter of 1 June
2006, in particular, he indicated that the assistant of the military
prosecutor of the Ussuriysk Garrison, investigator D., had made
threats “to hand him over” to the family of G. to let
them take revenge.
- On
15 June 2001 at about 10 a.m. investigator D. checked the applicant
out of the detention facility in order to take him to some
unspecified site, allegedly for investigative actions. The applicant
was transported by operative officers K. and T., both of whom were
armed, and he was driven in T.'s personal car. They drove to 33
Lermontova Street on the outskirts of Ussuriysk, where the car
stopped. K. and T. told the applicant that they were waiting for D.
to join them before they could proceed to the place for the
investigative action. While they were waiting, at 11 a.m. another car
later described as a “Japanese make” pulled in. Several
armed men got out, opened the door of T.'s car, forced the applicant
out and loaded him into their car. K. and T. offered no resistance to
their actions. According to the applicant, they even helped the men
to push the applicant into their car.
- The
armed men, who, the applicant maintained, were relatives of G., took
the applicant to a house in the country and tortured him there until
5 p.m. the same day. According to the applicant, he was chained
to a radiator pipe while the men took turns to administer blows with
various objects, such as stools, benches and tools, burned him with
cigarettes and crushed his fingers and toes. Every time the applicant
passed out they would throw him under cold water until he recovered
consciousness and then continued to torture him. Throughout the
beatings they threatened to kill his family and demanded that he
confess to the murder. At about 5 p.m. the men made an “anonymous
phone call” to investigator D., telling him that he could
collect the applicant from Frunze Street in Ussuriysk. The applicant
was then brought to that street where D. found the applicant and took
him back to the IZ-25/2 detention facility. In the detention facility
the applicant underwent a medical examination which established
multiple bruises, abrasions and burn marks on his body. He informed
an operative officer, Major Kh., about the incident and on the
following day sent a complaint, accompanied by the medical
certificate, to the Ussuriysk Prosecutor's Office.
- On
30 September 2001 the applicant sent a complaint to the Prosecutor's
Office of the Dalnevostochniy Military Command that he had been
ill-treated on 15 June 2001 and about the lack of follow-up to his
complaint of 16 June 2008. He requested that criminal proceedings be
instituted against the members of G.'s family and the officials who
had handed him over.
- On
19 November 2001 the applicant wrote to the Prosecutor's Office of
the Dalnevostochniy Military Command reiterating his complaints of
ill-treatment on 15 June 2001 and about the absence of any follow-up
to his earlier complaint.
- On
4 February 2002 the applicant reiterated his complaint to the
Prosecutor's Office of the Dalnevostochniy Military Command.
- On
13 February 2002 the Military Court of the Dalnevostochniy Command
convicted the applicant of aggravated murder and of theft of military
ammunition. He was sentenced to fourteen years' imprisonment. The
court in its judgment dismissed the applicant's complaint of
ill-treatment. The applicant appealed, claiming, inter alia,
that the court had used the testimony obtained under duress and
without a lawyer; that his detention had been extended unlawfully;
and that during a considerable period of time the investigation had
been inactive. He also complained of ill-treatment on 15 June 2001
and failure to investigate it.
- On
the same day the applicant received a reply from the Prosecutor's
Office of the Dalnevostochniy Military Command informing the
applicant that an additional enquiry would be carried out as regards
his complaint of ill-treatment. This was confirmed by another letter
from the same prosecutor's office on 22 February 2002.
- On
8 April 2002 the Prosecutor's Office of the Khabarovsk Garrison
opened a criminal investigation into the incident of 15 June 2001.
- On
29 April 2002 the applicant sent a complaint to the Prosecutor's
Office of the Dalnevostochniy Military Command. He complained that
the investigation in the criminal case concerning his ill-treatment
had been belated and inefficient. He alleged that he still had not
got access to any materials on the file and that even basic
investigative steps had not been taken.
- On
8 June 2002 the Prosecutor's Office of the Khabarovsk Garrison
discontinued criminal proceedings concerning the ill-treatment,
relying on the statements of the following persons, who had been
questioned:
– the
applicant, who reiterated the earlier submissions and the allegations
against the members of G.'s family and the implicated officials, D.,
T. and K.;
– investigator
D., who denied handing the applicant over or making any prior threats
to the applicant; he confirmed that there had been one occasion when
he had allowed S.G., a relative of the deceased, to talk to the
applicant in the interview room, but he had made no threats;
– witness
A., apparently also a member of G.'s family, who was present during
the above conversation and who confirmed that S.G. did not threaten
the applicant;
– operative
officer T. who submitted that on 15 June 2001 he was transporting the
applicant together with K.; they stopped in Lermontova Street waiting
for D. and were attacked by unknown persons who abducted the
applicant; he stated that they had not expected to be attacked and
had therefore offered no resistance; he had not received any
instructions from D. to hand the applicant over to G.'s relatives;
– S.G.,
the suspect in the applicant's abduction, denied any knowledge of the
incident;
– witness
N.K., apparently D.'s superior, submitted that D. had been negligent
in having failed to organise adequate transport of the applicant, but
was not responsible for him having been beaten up.
As
regards D., T. and K. it was established that they had been negligent
in discharging their official duties but there had been no causal
link between their negligence and the applicant's injuries. Their
prosecution for criminal negligence was therefore discontinued. The
proceedings against S.G. and other relatives of G. were also
discontinued on the grounds of lack of evidence against them.
- On
6 December 2002 the Military Section of the Supreme Court of Russia
upheld the applicant's conviction but reduced the prison sentence to
twelve years. The court of appeal found that there had been no
procedural irregularities during the pre-trial investigation, that
the applicant had been informed about his right to legal assistance
and had waived it. The testimony given by the applicant was found to
have been received in compliance with the procedural rules. As to the
alleged ill-treatment on 15 June 2001, the court of appeal
referred to it as “acts of unidentified individuals”. It
held that there was no connection between this episode and the
applicant's criminal conviction because the applicant had confessed
to the murder before the events of 15 June 2001.
- On
22 December 2002 the applicant lodged a complaint with a court
alleging, among other complaints, ill-treatment and inaction by the
prosecutor's office following his complaints.
- On
5 February 2003 the Military Court of Ussuriysk Garrison examined
this complaint and dismissed it. The court found that the
prosecutor's office had conducted an investigation of the episode of
ill-treatment and considered it thorough and sufficient. The
applicant appealed.
- On
18 February 2003 the applicant was informed that criminal proceedings
against investigator D., operative officers T. and K. and members of
G.'s family had been discontinued. He sent a complaint to the
Military Prosecutor's Office of the Khabarovsk Garrison requesting
access to the file relating to the discontinued criminal proceedings.
In reply, on 17 March 2003, he was informed that there had been
no grounds to reconsider previous decisions taken in respect of his
complaints.
- On
an unspecified date the applicant challenged the closure of the
criminal investigations of the ill-treatment before a court. On 14
April 2003 the court dismissed the applicant's claim, finding that
the decision to discontinue prosecution of the officers and G.'s
relatives had been lawful and reasonable. The applicant submitted
that on 10 June 2003 he had appealed against this decision.
- On
7 August 2003 the Military Court of the Dalnevostochniy Command
examined the applicant's appeal against the decision of 5 February
2003, reversed the latter decision and decided to discontinue the
proceedings on the grounds that the applicant's complaint was in fact
a request for a supervisory review. On 13 March 2006 the same court
examined the applicant's request for a supervisory review of the
decision of 5 February 2003 and rejected it having found that
the applicant's complaints were in essence an expression of his
disagreement with his conviction.
- On
17 March 2006 the same court examined and rejected the applicant's
request for supervisory review of the decision of 14 April 2003. It
upheld the earlier judicial assessment and the decision to
discontinue criminal proceedings concerning the applicant's
ill-treatment.
B. Conditions of the applicant's detention
- The
applicant was detained in the Ussuriysk no. IZ-25/2 detention
facility:
– from
16 February to 15 June 2001 in cell no. 76, which measured 42 square
metres;
– from
15 June 2001 to 5 March 2003 in cell no. 72, which measured 16.8
square metres (except for several short-term transfers to other
facilities for the purposes of the criminal proceedings and an
eight-month transfer to Moscow for the appeal hearing);
– from
27 February to 3 March 2003 in cell no. 11, which measured
21.4 square metres.
- The
conditions in the IZ-25/2 facility are partly in dispute between the
parties.
- According
to the applicant, the cells were overcrowded and there was a shortage
of sleeping places; the inmates slept on the concrete floor, huddled
together to keep warm; there had been no, or insufficient, heating;
the facility was overrun by rats; the light and water supply were
often interrupted. In support of his claims he provided a copy of his
letter to the Ussuriysk Prosecutor's Office dated 16 June 2001. In
this letter the applicant complained that he was detained in cell no.
76, which was extremely overcrowded. He indicated that he shared the
cell with thirty-eight other detainees and that there had not been
enough beds or mattresses and that “everybody slept on the bare
floor”.
- The
Government submitted that the information on the number of inmates in
the cells in the relevant period was not available because the
registration logs for that period were destroyed on 5 March 2007,
after the expiry of the term of their storage in archives. However,
relying on the certificate by the director of the facility, issued on
28 May 2007, and by the warden reports, issued on of 29 May 2007,
they contended that the conditions in the facility were satisfactory
and that the number of detainees in each cell did not exceed the
number of sleeping places. The Government submitted that the
applicant had an individual bunk and was provided with bedding. All
cells were disinfected on a “regular basis”. The sanitary
and hygienic conditions in the facility were in conformity with the
regulations. All cells were equipped with a lavatory pan and sink.
The pan was separated from the living area by a one-metre-high
partition wall with a curtain.
- The
Government submitted a copy of the sanitary inspection report issued
on 1 July 2002 by the Department of Sanitary and Epidemiological
Control of the Chief Penitentiary Department of the Ministry of
Justice in respect of facility no. IZ-25/2. The report contained a
detailed questionnaire filled in by the sanitary inspectors in the
presence of the facility administration and, inter alia, stated that:
– the
facility was designed for 720 inmates;
– at
the time of inspection there were 1,245 inmates;
– personal
living space in the cells was 2.31 square metres for male inmates (§
4.1);
– individual
sleeping facilities and bedding were available for 50% of inmates (§§
4.12 and 4.14);
– there
were insects and rodents in the facility (§ 4.18);
– sanitary
facilities in living quarters were insufficient and dilapidated
(§ 5.6).
II. RELEVANT DOMESTIC LAW
- Section
22 of the Detention of Suspects Act (Federal Law no. 103 FZ
of 15 July 1995) provides that detainees should be given free food
sufficient to maintain them in good health according to standards
established by the Government of the Russian Federation. Section 23
provides that detainees should be kept in conditions which satisfy
sanitary and hygienic requirements. They should be provided with an
individual sleeping place and given bedding, tableware and
toiletries. Each inmate should have no less than four square metres
of personal space in his or her cell.
III. RELEVANT INTERNATIONAL DOCUMENTS
- The
European Committee for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment (“the CPT”) visited the
Russian Federation from 2 to 17 December 2001. The section of its
Report to the Russian Government (CPT/Inf (2003) 30) dealing with the
conditions of detention in temporary holding facilities and remand
establishments and the complaints procedure read as follows:
“b. temporary holding facilities for
criminal suspects (IVS)
26. According to the 1996 Regulations establishing the
internal rules of Internal Affairs temporary holding facilities for
suspects and accused persons, the living space per person should be 4
m². It is also provided in these regulations that detained
persons should be supplied with mattresses and bedding, soap, toilet
paper, newspapers, games, food, etc. Further, the regulations make
provision for outdoor exercise of at least one hour per day.
The actual conditions of detention in the IVS
establishments visited in 2001 varied considerably.
...
45. It should be stressed at the outset that
the CPT was pleased to note the progress being made on an issue of
great concern for the Russian penitentiary system: overcrowding.
When the CPT first visited the Russian Federation in
November 1998, overcrowding was identified as the most important and
urgent challenge facing the prison system. At the beginning of the
2001 visit, the delegation was informed that the remand prison
population had decreased by 30,000 since 1 January 2000. An example
of that trend was SIZO No 1 in Vladivostok, which had registered a
30% decrease in the remand prison population over a period of three
years.
...
The CPT welcomes the measures taken in recent years by
the Russian authorities to address the problem of overcrowding,
including instructions issued by the Prosecutor General's Office,
aimed at a more selective use of the preventive measure of remand in
custody. Nevertheless, the information gathered by the Committee's
delegation shows that much remains to be done. In particular,
overcrowding is still rampant and regime activities are
underdeveloped. In this respect, the CPT reiterates the
recommendations made in its previous reports (cf. paragraphs 25 and
30 of the report on the 1998 visit, CPT (99) 26; paragraphs 48 and 50
of the report on the 1999 visit, CPT (2000) 7; paragraph 52 of the
report on the 2000 visit, CPT (2001) 2).
...
125. As during previous visits, many
prisoners expressed scepticism about the operation of the complaints
procedure. In particular, the view was expressed that it was not
possible to complain in a confidential manner to an outside
authority. In fact, all complaints, regardless of the addressee, were
registered by staff in a special book which also contained references
to the nature of the complaint. At Colony No 8, the supervising
prosecutor indicated that, during his inspections, he was usually
accompanied by senior staff members and prisoners would normally not
request to meet him in private 'because they know that all complaints
usually pass through the colony's administration'.
In the light of the above, the CPT reiterates its
recommendation that the Russian authorities review the application of
complaints procedures, with a view to ensuring that they are
operating effectively. If necessary, the existing arrangements should
be modified in order to guarantee that prisoners can make complaints
to outside bodies on a truly confidential basis.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION AS
REGARDS THE APPLICANT'S ILL-TREATMENT ON 15 JUNE 2001
- The
applicant complained that on 15 June 2001 he had been subjected to
treatment incompatible with Article 3 of the Convention and that the
authorities had not carried out an effective investigation into those
events. The Court will examine this complaint from the standpoint of
the State's negative and positive obligations flowing from Article 3,
which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. The parties' submissions
- The
Government confirmed that on 15 June 2001 the applicant was abducted
and ill-treated and that he had sustained the injuries he claimed,
contesting, however, any involvement of state officials in the
infliction of injuries. The Government found it impossible to
conclude that the applicant's rights guaranteed under Article 3 of
the Convention had been violated as a result of any acts or omissions
on the part of the state bodies or officials. They relied on the
domestic decisions, which found no grounds for the prosecution of
investigator D., or the convoy officers, or the relatives of G., at
whom the applicant pointed as perpetrators. The Government considered
that the authorities could not be held responsible for the assault of
the “unidentified individuals”.
- The
applicant maintained his allegations, pointing out that without the
consent of D., T. and K. his abduction would not be possible.
Moreover, he considered that the investigation of these events was
entirely inadequate, as it was open more than nine months after the
ill-treatment and, apart from questioning the implicated persons, did
not involve any steps aiming at establishing the culprits.
B. The Court's assessment
1. Admissibility
- The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
2. Merits
(a) Alleged ill-treatment
- The
Court has held on many occasions that the authorities have an
obligation to protect the physical integrity of persons in detention.
Where an individual is taken into custody in good health but is found
to be injured at the time of release, it is incumbent on the State to
provide a plausible explanation of how those injuries were caused
(see Ribitsch v. Austria, 4 December 1995, § 34,
Series A no. 336; see also, mutatis mutandis, Salman v.
Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII). In
assessing evidence, the Court has generally applied the standard of
proof “beyond reasonable doubt” (see Ireland v. the
United Kingdom, 18 January 1978, § 161, Series A no.
25). However, such proof may follow from the coexistence of
sufficiently strong, clear and concordant inferences or of similar
unrebutted presumptions of fact. Where the events in issue lie
wholly, or in large part, within the exclusive knowledge of the
authorities, as in the case of persons within their control in
custody, strong presumptions of fact will arise in respect of
injuries occurring during such detention. Indeed, the burden of proof
may be regarded as resting on the authorities to provide a
satisfactory and convincing explanation (see Ribitsch, cited
above, § 34, and Salman, cited above, § 100).
- The
Court observes, and it is common ground, that the applicant in the
present case sustained injuries when he was transported from the
place of his pre-trial detention to take part in an investigative
action, thus in the custody of the State. The circumstances of the
applicant's abduction and ill-treatment, as described by the
applicant, are not as such contested by the Government. What is in
dispute between the parties is the existence of a link between the
conduct of the officials in this situation and the infliction of
injuries suffered by the applicant. The applicant maintained that the
acts of ill-treatment were carried out by G.'s relatives with the
consent and assistance of investigator D., who had arranged for the
abduction. He also alleged negligence of the convoy officers T. and
K. in that they had failed to protect him from the assault. The
Government, on the other hand, did not accept responsibility on the
part of these persons for the damage suffered by the applicant.
- The
Court notes that the applicant was taken out of the detention
facility following the order of investigator D. who had allegedly
requested the applicant's presence at some unspecified site for
undisclosed investigative actions. According to D., T. and K. the
attack on the convoy and the applicant's abduction had been a total
surprise and that they were unable to put resistance or to track down
the perpetrators. The Court, however, considers their account to lack
credibility. First, the purpose of the applicant's detour from the
detention facility remains unclear because D. has not explained what
investigative action was intended to be carried out, at what
destination, or why the convoy had to stop and wait half way. T. and
K., on their part, failed to explain their lack of attempts to offer
resistance to the kidnappers, or to pursue them, or to report that
they had lost the detainee they convoyed. Further incoherence may be
observed in the account of the applicant's return into custody later
that evening. In particular, it remains unexplained why D., having
received an “anonymous call” inviting him to collect the
applicant at the designated address, did not seek assistance from his
fellow policemen in arresting the kidnappers, but simply picked the
applicant up and took him back to the detention facility.
- The
Court, however, does not need to resolve doubts as to the extent of
D., T. and K.'s involvement in the applicant's abduction for the
following reasons.
- The
Court notes that the existence of professional negligence on the part
of these officials had been confirmed in the domestic proceedings
(see paragraph 18 above). It furthermore considers, contrary to what
the Government claimed, that the omissions on the part of the
impugned officers had a direct causal link with the applicant's
injuries. Even assuming that the convoy fell an innocent victim of
the “unidentified perpetrators”, as they contended, their
professional duty required them to do everything possible to rescue
the inmate in their charge. However, as mentioned above, they neither
pursued the kidnappers nor reported the assault, having thus failed
to take even the most obvious steps to prevent the kidnappers from
taking the applicant away and ill-treating him. The Court therefore
considers that even the “professional negligence” in
transporting him, which has been acknowledged by the authorities, was
a major contributor to the damage suffered by the applicant. For this
reason, without having to examine whether the officials' involvement
in the abduction went further than mere negligence, the Court
considers it established that there has been a failure to ensure the
applicant's security and that there has been a causal link between
the authorities' conduct and the applicant's ill-treatment.
- The
Court therefore considers that the Russian authorities failed to
rebut the presumption of their responsibility for the injuries
inflicted on the applicant while in charge of the State. Accordingly,
the responsibility for the ill-treatment lies with the domestic
authorities.
- The Court shall further determine the form of
ill-treatment inflicted on the applicant. In determining whether a
particular form of ill-treatment should be qualified as torture,
consideration must be given to the distinction, embodied in Article
3, between this notion and that of inhuman or degrading treatment. As
noted in previous cases, it appears that it was the intention that
the Convention should, by means of this distinction, attach a special
stigma to deliberate inhuman treatment causing very serious and cruel
suffering (see Ireland v. the United Kingdom, cited above, §
167). The fact that pain or suffering was inflicted with an intention
to obtain information, inflict punishment or intimidate is a factor
to be taken into account in deciding whether ill treatment
amounted to torture (see Aksoy v. Turkey, 18 December 1996, §
64, Reports of Judgments and Decisions 1996-VI; Aydın
v. Turkey, 25 September 1997, §§ 83-84 and 86, Reports
1997-VI; Selmouni v. France [GC], no. 25803/94, §
105, ECHR 1999-V; Dikme v. Turkey, no. 20869/92, §§
94-96, ECHR 2000-VIII; Salman, cited above, § 114; and
Batı and Others v. Turkey, nos. 33097/96 and 57834/00,
§ 116, ECHR 2004-IV (extracts)).
- The
Court finds that in the instant case the existence of physical pain
and suffering is attested by the medical report and the applicant's
statements regarding his ill-treatment at the hands of the
kidnappers. The nature of injuries and the account of events indicate
that the pain and suffering was inflicted on him intentionally, in
particular with the view of extracting from him a confession to
having committed the offence he was suspected of and of taking
revenge on him.
- In such circumstances, the Court considers that the
violence inflicted upon the applicant was of a particularly serious
nature, capable of provoking severe pain and cruel suffering which
fall to be treated as acts of torture for the purpose of Article 3 of
the Convention.
- In the light of the above, the Court concludes that
there has been a violation of Article 3 of the Convention.
(b) Alleged failure to carry out an
effective investigation
- The Court reiterates that where an individual raises
an arguable claim that he or she has been seriously ill-treated by
the police in breach of Article 3, that provision, read in
conjunction with the State's general duty under Article 1 of the
Convention to “secure to everyone within their jurisdiction the
rights and freedoms defined in ... [the] Convention”, requires
by implication that there should be an effective official
investigation. This investigation should be capable of leading to the
identification and punishment of those responsible (see Assenov
and Others, 28 October 1998, § 102, Reports 1998-VIII,
and Labita v. Italy [GC], no. 26772/95, § 131, ECHR
2000-IV). The minimum standards as to effectiveness defined by the
Court's case-law also include the requirements that the investigation
must be independent, impartial and subject to public scrutiny, and
that the authorities concerned must act with exemplary diligence and
promptness (see, for example, Isayeva and Others v. Russia,
nos. 57947/00, 57948/00 and 57949/00, §§ 208-13, 24
February 2005).
- Turning
to the present case, the Court notes that immediately after the
incident of 15 June 2001 the applicant lodged a complaint with the
prosecutor's office, in which he alleged ill-treatment and requested
a criminal investigation to be opened. This complaint was accompanied
by a medical certificate attesting his injuries. On 30 September
2001, on 19 November 2001 and on 2 February 2002 he reiterated
his complaint to the prosecutor's office and on 13 February 2002 he
made the same complaint to the court hearing his criminal case.
However, the investigation was not opened until 8 April 2002, that is
more than nine months later.
- The
Court considers that the medical evidence and the applicant's
complaints together raised a reasonable suspicion that his injuries
could have been a result of a criminal offence against the applicant,
possibly with the involvement of the officials or their failure to
ensure his safety in the custody of the State. It therefore finds
that a procedural obligation arose to investigate the applicant's
allegation of ill-treatment as soon as he brought the matter before
the authorities concerned, namely the prosecutor's office and the
detention facility. However, the investigation was only opened more
then nine months after the events complained of, and there is no
reasonable explanation for this delay. The case was eventually
investigated by the Prosecutor's Office of the Khabarovsk Garrison in
criminal proceedings which, despite their lateness, were not
necessarily doomed to failure, since the file already contained ample
evidence. However, this inquiry has been far from satisfactory. It
does not appear that there have been any attempts to gather evidence
or to clarify the circumstances of the applicant's abduction and
ill-treatment. The decision of 8 June 2002 by which the criminal
proceedings were discontinued contained little more than a statement
that none of the persons accused by the applicant had confessed to
the kidnapping. When questioned they were not required to provide any
specific information relevant to the abduction. It is striking, in
particular, that D., T., and K. were not questioned about the
vehicles in which the applicant had been kidnapped or returned, that
no description of perpetrators was drawn, that there had been no
identification parade with the relatives of G. before T., and K. or
any search at their premises. Moreover, D., T. and K. were not
required to specify the purpose of the applicant's detour from the
detention facility, or to explain their own actions following the
abduction in order to verify the allegations of their involvement.
- The
above deficiencies of the investigation have never been pointed out
by the reviewing bodies, including the courts.
- Accordingly,
in view of the lack of promptness and thoroughness in following up
the applicant's complaints, there has also been a violation of
Article 3 of the Convention on account of the lack of an effective
investigation of the incident of ill-treatment.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON
ACCOUNT OF THE CONDITIONS OF THE APPLICANT'S DETENTION
- The
applicant complained that the conditions of his detention in the
Ussuriysk IZ-25/2 detention facility were 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. Submissions by the parties
- The
Government argued that the applicant had not exhausted domestic
remedies available to him. In particular, he had not complained to a
prosecutor about the conditions of his detention. The Government
further commented on the conditions of the applicant's detention. In
particular, they submitted that the applicant had been detained in
satisfactory sanitary conditions. Relying on certificates issued by
the facility director, they pointed out that the applicant had not
been detained in overcrowded cells. At all times he had had an
individual sleeping place. The Government submitted that they were
not in possession of any documents showing the names and exact number
of inmates in the cells in which the applicant had been detained
because the logs had been destroyed after the expiry of the archive
time-limits.
- The applicant maintained his complaints. He relied on
the sanitary report of 1 July 2002, provided by the Government,
which, as he alleged, confirmed the existence of overcrowding, the
lack of sleeping facilities and unsatisfactory sanitary situation in
the facility.
B. The Court's assessment
1. Admissibility
- The Court notes the Government's argument that the
applicant failed to complain to a prosecutor about the appalling
conditions of his detention. In this connection, the Court observes
that it has already on a number of occasions examined the same
objection by the Russian Government and dismissed it. In particular,
the Court held in the relevant cases that the Government had not
demonstrated what redress could have been afforded to the applicant
by a prosecutor, a court, or another State agency, bearing in mind
that the problems arising from the conditions of the applicant's
detention were apparently of a structural nature and did not concern
the applicant's personal situation alone (see Moiseyev v. Russia
(dec.), no. 62936/00, 9 December 2004; Kalashnikov v.
Russia (dec.), no. 47095/99, 18 September 2001; and most
recently, Andrey Frolov v. Russia, no. 205/02, § 39, 29
March 2007, and Sudarkov v. Russia,
no. 3130/03, § 39, 10 July 2008). The Court sees no
reason to depart from that finding in the present case. Moreover, it
notes that the applicant in the present case had in fact complained
to the prosecutor's office (see his complaint of 16 June 2001
referred to in paragraph 28 above), which did not appear to yield any
response. The Court therefore considers that this complaint cannot be
rejected for failure to exhaust domestic remedies.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention and is not
inadmissible on any other grounds. It must therefore be declared
admissible.
2. Merits
- The
Court notes that the parties have disputed certain aspects of the
conditions of the applicant's detention in the Ussuriysk IZ-25/2
detention facility. However, there is no need for the Court to
establish the veracity of each and every allegation, because it finds
a violation of Article 3 on the basis of facts presented to it which
the respondent Government did not refute.
- The
focal point for the Court's assessment is the living space afforded
to the applicant in the detention facility. The main
characteristic which the parties did agree upon was the size of the
cells. However, the applicant claimed that the cell population
severely exceeded their design capacity. The Government argued that
the applicant had not been detained in the overcrowded cells and that
at all times he had had an individual bunk.
- In
this connection, the Court reiterates that Convention proceedings,
such as those arising from the present application, do not in all
cases lend themselves to a rigorous application of the principle
affirmanti incumbit probatio (he who alleges something must
prove that allegation), as in certain instances the respondent
Government alone have access to information capable of corroborating
or refuting allegations. A failure on a Government's part to submit
such information without a satisfactory explanation may give rise to
the drawing of inferences as to the well-foundedness of the
applicant's allegations (see Ahmet Özkan and Others
v. Turkey, no. 21689/93, § 426, 6 April 2004).
- The
Court notes that the Government in their contestation of the
applicant's complaint of overcrowding were unable to rely of the
facility's registration logs claiming that they had been destroyed.
However, the sanitary report of 1 July 2002 provided by the
Government supported the applicant's allegations, rather than their
own, because it stated that only 50% of inmates had had individual
sleeping facilities. The Court further notes that the same sanitary
report stated that the facility was overfilled by almost twice its
capacity and that living space per inmate was as little as 2.31
square metres. It also confirmed the presence of insects and rodents
in the facility, as well as the poor state of the sanitary equipment.
- Having
regard to the principle cited above, together with the fact that the
Government did not submit any relevant information in support of
their claim, the Court will examine the issue concerning the number
of inmates in the cells in facility no. IZ-25/2 on the basis of the
applicant's submissions.
- According to the applicant, the cells were severely
overcrowded at all times. Although he did not indicate how the
allocation of the living space changed throughout the period of
detention, the Court notes that in June 2001 he allegedly shared a
cell measuring 42 square metres with 38 other detainees and was not
provided with an individual sleeping place. The sanitary report drawn
a year later, in July 2002 (see paragraph 30 above), shows an only
marginal increase in living space and stated that there were only
half as many sleeping places as they were detainees in the facility.
The Court concludes that in the reference period the applicant was
allowed about 2.31 square metres of personal space, even less on some
occasions, and that there was a clear shortage of sleeping places.
- Irrespective
of the reasons for the overcrowding, the Court reiterates that it is
incumbent on the respondent Government to organise its penitentiary
system in such a way as to ensure respect for the dignity of
detainees, regardless of financial or logistical difficulties (see
Mamedova v. Russia,
no. 7064/05, § 63, 1 June 2006).
- The
Court has frequently found a violation of Article 3 of the Convention
on account of a lack of personal space afforded to detainees. In
this connection, the Court reiterates that in a number of cases in
which detained applicants usually had less than three and a half
square metres of personal space it has already found that the lack of
personal space afforded to them was so extreme as to justify, in its
own right, a violation of Article 3 of the Convention (see Kantyrev
v. Russia, no. 37213/02, §§
50-51, 21 June 2007; Igor Ivanov
v. Russia, no. 34000/02, §§
37-38, 7 June 2007; Benediktov v.
Russia, no. 106/02, §§
36-38, 10 May 2007; Andrey Frolov,
cited above, §§ 47-49; Mayzit
v. Russia, no. 63378/00, § 40,
20 January 2005; and Labzov v.
Russia, no. 62208/00, § 44, 16
June 2005, among others). The Court also found that the problems
arising from overcrowding in Russian pre-trial detention facilities
were of a structural nature (see Moiseyev,
cited above; Kalashnikov,
cited above; and Mamedova v. Russia,
no. 7064/05, § 57, 1 June 2006).
- Having
regard to its case-law on the subject and the material submitted by
the parties, the Court notes that the Government have not put forward
any fact or argument capable of persuading it to reach a different
conclusion in the present case. Although in the present case there is
no indication that there was a positive intention to humiliate or
debase the applicant, the Court finds that the fact that the
applicant was obliged to live, sleep and use the toilet in the same
cell as so many other inmates for more than two years was itself
sufficient to cause distress or hardship of an intensity exceeding
the unavoidable level of suffering inherent in detention, and to
arouse in him feelings of fear, anguish and inferiority capable of
humiliating and debasing him.
- Furthermore,
while in the present case it cannot be established “beyond
reasonable doubt” that the heating or sanitary conditions in
the facility were unacceptable from the standpoint of Article 3, the
Court nonetheless notes that presence of insects and rodents in the
facility, as well as the dilapidated state of the sanitary equipment,
are relevant in addition to the focal factor of the severe
overcrowding, and show that the applicant's detention conditions went
beyond the threshold tolerated by Article 3 of the Convention (see
Novoselov v. Russia, no. 66460/01, § 44, 2 June 2005).
- The
Court finds accordingly that there has been a violation of Article 3
of the Convention because the applicant was subjected to inhuman and
degrading treatment on account of the conditions of his detention
from 16 February 2001 to 5 March 2003 in the Ussuriysk IZ-25/5
facility.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant complained under Article 5 §§ 1 (a) and 3 (c)
that his pre-trial detention had been both unlawful and excessively
long. He also complained under Article 6 § 1 of the Convention
about the length of the criminal proceedings and about of shortfalls
in the trial, as well as in the investigation of his criminal case,
and the courts' failure to remedy them. Under Article 6 § 3 (c)
and (d), he complained that his right to defence and adequate time to
prepare his defence had been violated. Under Article 4 § 1 of
Protocol No. 7 he complained that he had been punished twice for the
same offence, referring to the allegedly wrongful interpretation of
some counts of his conviction.
- In
the light of all the material in its possession, and in so far as the
matters complained of are within its competence, 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 and 4 of the
Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 112,500 Russian roubles in respect of pecuniary
damage sustained as a result of his detention on criminal charges,
including alleged damage to his flat while he was in detention. He
also claimed 300,000 euros (EUR) in respect of non-pecuniary damage
sustained as a result of violation of his Convention rights.
- The
Government contested the applicant's claims as unsubstantiated and
excessive.
- The Court notes that the
applicant's claim for pecuniary damage relates to the complaints that
have been found inadmissible (see paragraphs 68-69 above);
it therefore rejects this claim. The Court further observes that it
has found serious violations of Article 3 of the Convention in the
present case, most importantly torture. In these circumstances, it
considers that the applicant's suffering and frustration cannot be
compensated for by a mere finding of a violation. Nevertheless, the
particular amount claimed appears excessive. Making its assessment on
an equitable basis, it awards the applicant EUR 22,000 in respect of
non-pecuniary damage, plus any tax that may be chargeable on that
amount.
B. Costs and expenses
- The applicant requested the
Court to reimburse him the expenses incurred in the proceedings
before the Court but did not indicate the amount sought.
- The Government contended this
claim as unsubstantiated.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his 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. Having noted that the applicant's request contained no
particulars and was not accompanied by any supporting documents, the
Court dismisses the claim under this head.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints under Article 3
concerning the ill-treatment of the applicant, the lack of effective
investigation thereof and the conditions of the applicant's detention
in facility no. IZ-25/5 in Ussuriysk admissible and the remainder of
the application inadmissible;
- Holds that there has been a violation of Article
3 of the Convention on account of the ill-treatment inflicted on the
applicant;
- Holds that there has been a violation of Article
3 of the Convention on account of the failure to conduct an effective
investigation into the applicant's complaints about the
ill-treatment;
- Holds that there has been a violation of Article
3 of the Convention on account of the conditions of the applicant's
detention from 16 February 2001 to 5 March 2003 in facility no.
IZ-25/5 in Ussuriysk;
- 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, EUR
22,000 (twenty-two thousand euros), plus any tax that may be
chargeable in respect of non-pecuniary damage, to be converted into
the national currency of the respondent State at the rate applicable
at the date of settlement;
(b) that from the expiry of the above-mentioned three
months until settlement simple interest shall be payable on the above
amount at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 29 January 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
