In the case of Tangiyev v. Russia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Isabelle Berro-Lefèvre, President,
Elisabeth Steiner,
Nina Vajić,
Anatoly Kovler,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque, judges,
and André Wampach, Deputy Section Registrar,
Having deliberated in private on 20 November 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
27610/05) 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 Timur Khavazhiyevich Tangiyev
(“the applicant”), on 22 June 2005.
The applicant was represented by lawyers of the Stitching Russian Justice Initiative (“SRJI”), an NGO based in the Netherlands with a representative office in Russia. The Russian Government (“the Government”) were
represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.
The applicant alleged, in particular, that he had
been subjected to ill-treatment in custody, that the ensuing
investigation had been ineffective, that his conviction had been based on a forced
confession and that the authorities had interfered with
his right of individual petition.
On 30 September 2009 the application was
communicated to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1977 and is serving a
prison sentence in the Vladimir Region.
A. The applicant’s arrest and ensuing detention
On 11 April 2003 the police arrested the applicant
in his house in the presence of his family. According to the applicant, in the
course of the arrest, the police officers severely beat him up and burnt his
body with cigarette butts and matches.
The applicant was taken to the Staropromyslovskiy
police station by car. When questioned by the deputy prosecutor, the applicant admitted
having been present during the murder of two law-enforcement officers, having
been involved in a car-jacking and having been in possession of firearms. It
appears that on the same day the Staropromyslovskiy District Court of Grozny
authorised the applicant’s placement in custody.
On an unspecified date the applicant was charged
with several counts of murder, membership of an armed criminal gang, unlawful
possession of firearms, theft and car-jacking.
When questioned in the presence of lawyer Ts. on
12 April 2003, the applicant reiterated his statement of 11 April
2003. According to the record of the questioning, he confirmed that he had made
his statement voluntarily.
On 14 April 2003 the applicant was
blindfolded and taken to a temporary detention centre of the ORB-2 (Operative
investigation bureau). During the night he was taken to an office on the fourth
floor. According to the applicant, police officers made him kneel and attached
telephone cable to his fingers, subjecting him to electrocution. They also hit
him with a rubber truncheon.
On the same date the applicant was questioned
and confessed to killing A. and to his involvement in the killing of the Kham.
brothers. Lawyer Ts. was present during the questioning. The applicant
reiterated his confessions when questioned again, in the presence of the same
lawyer, on 21 April 2003.
The applicant remained at the ORB-2 temporary
detention centre for two months. He was repeatedly ill-treated by the same
police officers. On an unspecified date the applicant signed a written confession.
The applicant’s mother, who visited him at the
beginning of June 2003, submitted a written statement that she had seen a
purulent wound on the back of the applicant’s head.
On 20 June
2003 the applicant was transferred to remand prison no. IZ-20/1 in Grozny. He was examined by a doctor who noted that the applicant had marks on the back of
his head caused by beatings and three cigarette burns on his body. It also
transpired from a report signed on 20 June 2003 by two officials of the
remand prison and an employee of ORB-2 that the applicant had been handed over
to the remand prison “with the following injuries from ill-treatment: (1)
cigarette burns (many); (2) [injuries] on the back of the head.”
The applicant’s mother visited him again on 21
or 22 June 2003. In her written statement to the Court she testified that his
entire body had been dark blue, and he had had numerous burn marks and a wound
on the head.
On 11 October 2003 the applicant was transferred
back to the Staropromyslovskiy temporary detention centre. On the same day he
was brought before a judge. He retracted his confession, complained about ill-treatment
and asked for another counsel.
According to the applicant, at 10 p.m. on 12
October 2003 he had been taken from his cell to the questioning room at the
temporary detention centre. The police officers had handcuffed him, put a
plastic bag on his head and started to beat him and torture him with electricity.
They had told him that he should not have retracted his confession and that in the
future he should always confirm his self-incriminating statements and show
remorse. After the applicant had been returned to his cell he unsuccessfully
attempted to take his life by slashing his wrists.
On 23 October 2003 the applicant was examined by
the doctor of the remand prison, who noted that he had many abrasions on his
left forearm.
On 10 January 2004, when questioned in the
presence of lawyer B., the applicant chose to remain silent.
B. Trial and appeal proceedings
During the trial the applicant was represented
by two lawyers. He retracted his confession and claimed that he had confessed
under torture. He complained to the trial judge that his arrest and detention
at ORB-2 had been unlawful, that he had been repeatedly ill-treated and threatened,
and had finally been forced to confess. He pleaded not guilty.
On 5 October 2004 the Supreme Court of the Republic of Chechnya convicted the applicant as charged and sentenced him to twenty-four
years’ imprisonment. It based its decision on the applicant’s confession,
confessions of his co-defendants, witness statements to the investigator and
the court, and ballistic expert reports concluding that the victims had been
shot with the weapons found in the applicant’s house.
In reply to the applicant’s allegations of
ill-treatment and forced confession, the court referred to the prosecutor’s
decision of 11 May 2004 (see paragraph 27 below). It reviewed the prosecutor’s
findings and found that they had been correct. In particular, the court agreed
with the prosecutor that the medical examination had not confirmed the
ill-treatment and that the witness statements had been unconvincing. The
witnesses had not seen the beatings themselves and had been unable to name the
police officers who had allegedly ill-treated the applicant. Moreover, despite
the applicant’s claim to the contrary, at least one of the witnesses, Vlad.,
had known the applicant prior to his arrest. The court also referred to the
medical certificate of 22 April 2003 from which it transpired that the
applicant had no injuries. Lastly, it pointed out that the applicant had been
assisted by counsel during the entire investigation. The court concluded that
the prosecutor’s decision of 11 May 2004 had been lawful, well-reasoned and
justified.
The applicant appealed. He submitted, in
particular, that he had given his confession under duress. He had been
unlawfully held at ORB-2, where he had been ill-treated and forced to confess.
The prosecutor’s inquiry into his allegations of ill-treatment had been
inadequate and ineffective.
On 8 June 2005 the Supreme Court of the Russian Federation upheld the conviction on appeal and reduced the sentence to twenty-three
years and ten months’ imprisonment. With respect to the allegations of
ill-treatment, the court noted that there was no evidence that the applicant’s
confession had been given under duress.
C. Official inquiry into the alleged ill-treatment
In the course of the trial the applicant’s
counsel complained to the court that the applicant had been subjected to
ill-treatment during the arrest and whilst in police custody. The court ordered
the prosecutor to carry out an inquiry into the applicant’s allegations.
The prosecutor’s office of the
Staropromyslovskiy District of Grozny conducted an inquiry. The prosecutor
questioned the applicant, his co-defendants and co-detainees, and the alleged
perpetrators.
On
11 May 2004 the prosecutor’s office dismissed the applicant’s allegations
of ill-treatment as unsubstantiated. The investigator and the prosecutor’s
office summarised the findings of the conducted inquiries as follows:
“When questioned, [the applicant] stated that on 11 April
2003 he was arrested ... In the course of the arrest, he was beaten up. [The
police officers] burnt him with cigarettes and matches. Then he was taken to
[the police station]. Several days later, with a knitted hat pulled over his
face, he was taken to [ORB-2] and placed in cell no. 4. On the same night
[the police officers] took him to an office on the fourth floor. He was made to
kneel. They attached two telephone cables to his fingers and tortured him with
electricity. They also beat him with a rubber truncheon. The torture continued
every day and night with brief intervals. He had a scar on the back of his head
... On 13-14 October 2004 he was beaten up at [the temporary detention centre]
because he had retracted his earlier testimony. He was beaten up by [police
officers Bis., Has., Zhab. and Alis.]. The fact that he had been beaten up could
be confirmed by Sul. and Khad.
When questioned, [co-defendant] Ch. submitted ... that he had
no knowledge as to whether [the applicant] had been subjected to any
ill-treatment. When he saw [the applicant] at [ORB-2], he had no visible traces
of beatings. He looked quite normal. [The applicant] complained to him through
the wall separating their cells that he had been beaten up.
...
When questioned, Vlad. submitted that around the beginning of May
2003 he had been arrested by [the police] and placed in cell no. 4 at
[ORB-2]. [The applicant] had been brought into the cell at night. He had had bruises
on his face. [Vlad.] further submitted that ... [the applicant] had been taken for
questioning during the night. He had not seen [the police officers] who had
taken and then brought back [the applicant]. ... He had seen [the applicant] ...
for the last time in the remand prison in Grozny. He had looked well. As
regards the use of force against [the applicant] in the course of the preliminary
investigation, he had been told about it by [the applicant] himself.
When questioned, Sul. submitted that he had been arrested [by
police] in mid-March 2003 and had been detained in the temporary
detention centre. In mid-April 2003 [the applicant] had been placed
in the same cell. [The applicant] had been severely beaten. [Sul.] had seen a
wound on [the applicant’s] head and red spots on his chest. ... he further
submitted that he had not witnessed how [the applicant] had been beaten; he had
seen [the applicant] only afterwards.
...
When questioned, Khad. submitted that he had been detained in
[ORB-2]. In mid-April 2003 he had heard the police officers mention the
[applicant’s] name. At that time, the vent in the door to his cell had been open.
He had seen through the vent that [the applicant] had been undressed by the
guards ... He had seen dark blue bruises on the [applicant’s] back.
...
T., deputy head of the [temporary detention centre] in Grozny, submitted that on 11 October 2003, upon arrival at the temporary detention
centre, [the applicant] had been examined by a doctor. [The applicant] had not
complained about his condition. During the time of [the applicant’s] detention
in the temporary detention centre, he had never been questioned during the
night. Any work with the suspects after 10 p.m. was prohibited ... Whilst in
detention in the temporary detention centre, the applicant had slashed his wrists
and received medical assistance.
When questioned, ... Bis. submitted that on 11 April 2003 during
the [applicant’s] arrest ..., his unit had cordoned off the perimeter to
prevent the [applicant’s] escape. The [applicant’s] arrest had been carried out
by the [criminal investigation unit of the police]. When [the applicant] had
been arrested, they had removed the cordon. ... He had entered the house and had
seen [the applicant] standing by the wall in the hallway with his arms up. [The
applicant] had recognised him because they knew each other. ... He had not seen
[the applicant] since. He had not used any force against the applicant.
... Khas. submitted that in April 2003 [the law-enforcement
agencies] had carried out the arrest of [the applicant], who had been the
leader of an organised criminal group. He had not taken part in the [applicant’s]
arrest. He did not know who had arrested him. He had not put any physical
pressure on [the applicant]. It was impossible for him to have done so because
he had not been involved in the [applicant’s] arrest. ...
When questioned, [police officers] Zhab. and Alis. submitted
that in the course of the arrest, [the applicant] had tried to resist and
abscond. As a result, force had been used against him. They did not know who
exactly had used force against [the applicant]. No physical or psychological
pressure had been put on [the applicant] during the preliminary investigation
and [the applicant’s] detention. [The applicant] had testified voluntarily. The
information given by the [applicant] had led to new evidence being obtained in
respect of other participants in the criminal gang ... .
...
When questioned, Sh., the head of the on-call unit of ORB-2, submitted
that no psychological or physical force had been used against the detainees in
ORB-2. He further explained that the cells ... were equipped with metal doors
with vents ... Those vents were kept closed. They were always closed when an
arrestee was brought to the premises. This was done to prevent the detainees
from seeing each other and communicating. The radio was on all the time. The
sound was at full volume in order to be heard in the cells. It was impossible
for the detainees to hear any conversation held in the corridor.
...
When questioned, police officer Ul. ... submitted that he and
other police officers had arrested [the applicant]. They had had information
implicating [the applicant] in the murder of the Kham. brothers and that he had
been armed. At the time of the arrest, [the applicant] had been at home eating
on the floor. When the applicant had seen the police officers, he had run to
the bed trying to get a gun hidden under the pillow. In order to neutralise and
arrest [the applicant], he had had to use force and combat techniques. When
they had taken [the applicant] out of the house, they had pulled his T-shirt over
his head in order to prevent him from fleeing. He had noticed small scars on
the [applicant’s] chest and belly. After the arrest, no force had been used
against [the applicant]. [The applicant] had asked to be released and had
promised to help the police. He had wanted to give information about all the
members of the gang whom he knew personally.
...
According to the medical register of the temporary detention
centre ... , [the applicant] had complained only about his dry cough ...
...
According to forensic report no. 399 of 5 May 2004 it
had been impossible to determine the origin of the scars on the [applicant’s] body
because the wounds were infected. There was no forensic data substantiating the
allegation that the injuries ... had been caused by electrocution. The deep scar
on the front of the right forearm could have resulted from the removal of a
lipoma. Multiple ... scars on the front of the left forearm had resulted from
injuries caused by stabbing. The position of the scars did not exclude the possibility
that they had been self-inflicted.
...
Vlad., Khad. and Sul. were suspects in the criminal
investigation. Their statements that they had seen [the applicant] being
ill-treated had been refuted by the evidence collected in the course of the
present inquiry.
According to the certificate issued by ORB-2, Sul. had been
detained there from 25 July to 5 August 2003 and could not have met
[the applicant], who had been detained at ORB-2 from 16 April to
20 June 2003. ...
Khad. could not have heard the [applicant’s] name pronounced by
someone in the corridor because the radio was constantly on. Nor could he have
seen [the applicant] from his cell, because the vents in the cell doors were always
kept closed when a new arrestee was brought to the premises.
As regards the statement made by Vlad., it was [the applicant]
himself who had told him about the alleged ill-treatment.
The statements made by Vlad., Khad. and Sul. should be
interpreted as their attempt to falsely accuse the police officers in order to
help [the applicant] ... to evade criminal liability.
Having regard to the above, it was established in the course of
the inquiry that force had been used against [the applicant] only in the course
of his arrest because he had tried to resist and flee. The actions of the
police had been lawful. .... The force used against [the applicant] had not been
excessive.
The [applicant’s] allegations ... have not been substantiated
by any evidence.
The [applicant’s] allegations ... should be viewed as a line of
defence aimed at misleading the courts and evading criminal responsibility.”
On 16 July 2004 the applicant challenged the
decision of 11 May 2004 before the Staropromyslovskiy District Court of Grozny.
According to the Government, the appeal had been lodged by the two lawyers
representing the applicant. On 20 July 2004 the statement of appeal was
returned to the lawyers because lawyer D. had failed to sign it. According to
the applicant, neither he nor his counsel had been informed accordingly; nor had
they received the returned statement of appeal.
D. Developments in the case following its
communication to the Government
According to the applicant, on 7 February
2010 his mother had been summoned to the prosecutor’s office in Grozny. An official at the office had allegedly made threats to her in connection with the
applicant’s complaints to the Court. He allegedly said that the applicant had
lodged too many complaints with the Court and that that might cause him problems.
On 8 February 2010 the house in which the
applicant’s family were temporarily living was set on fire.
The official investigation concluded that the
fire had resulted from a malfunctioning gas heating system. The possibility of
arson was ruled out.
On 17 February 2010 the prosecutor’s office
refused to open a criminal investigation into the matter. On 12 April 2010
that decision was quashed and the proceedings resumed in connection with the allegations
made by the applicant’s mother that she had been threatened by an official working
at the prosecutor’s office. The parties did not inform the Court of the outcome
of the proceedings, nor did they provide copies of the relevant decisions.
II. RELEVANT DOMESTIC LAW
. Article
413 of the Russian Code of Criminal Procedure, setting out the
procedure for reopening of criminal cases, reads, in so far as relevant, as
follows:
“1. Court judgments and decisions
which became final should be quashed and proceedings in a criminal case should
be re-opened due to new or newly discovered circumstances.
...
4. New circumstances are:
...
(2) a violation of a provision
of the European Convention for the Protection of Human Rights and Fundamental
Freedoms committed by a court of the Russian Federation during examination
of a criminal case and established by the European Court of Human Rights,
pertaining to:
(a) application of a federal
law which runs contrary to provisions of the European Convention for the
Protection of Human Rights and Fundamental Freedoms;
(b) other violations of
provisions of the Convention for the Protection of Human Rights and
Fundamental Freedoms;
(c) other new circumstances.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
The applicant complained that he had been
subjected to ill-treatment while in custody and that the ensuing investigation
had not been effective, in contravention of Article 3 of the Convention, which
reads as follows:
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
A. Admissibility
The Government submitted
that the applicant had failed to exhaust domestic remedies in that he had not
challenged the prosecutor’s refusal to open a criminal case by applying to a
court. In their view, the applicant, who had been represented by two lawyers
well-versed in criminal matters, had chosen not to appeal against the prosecutor’s
decision in question, which must have been in line with his defence strategy.
The applicant asserted
that he had exhausted domestic remedies because he had in fact lodged a
complaint against the prosecutor’s decision of 11 May 2004. However, he
had never been informed of the outcome. He further pointed out that the
Government’s allegations concerning the dismissal of his appeal without
consideration on the merits on 20 July 2004 were unsupported. The
Government had not provided a copy of the relevant decision.
The Court reiterates its finding in earlier
cases that in the Russian legal system the power of a
court to reverse a decision not to institute criminal proceedings is a
substantial safeguard against the arbitrary exercise of powers by the
investigating authorities (see Trubnikov v.
Russia (dec.), no. 49790/99,
14 October 2003).
. The
Court further observes that the applicant did lodge a complaint against the prosecutor’s
decision of 11 May 2004. The Court also takes cognisance of the fact that
no evidence has been submitted by the Government to confirm their assertion
that that complaint had been left without consideration on the merits as a
result of the applicant’s failure to observe certain procedural formalities.
The Court does not need to establish, however, the veracity of the parties’
allegations in this respect, as the applicant’s complaint was, nevertheless, reviewed
by the trial and appeal courts. They examined the merits of the applicant’s
complaint, reviewed the prosecutor’s findings, which had been summed up in the
decision of 11 May 2004, questioned the applicant and ruled that there was
no case to answer against them.
. In
this connection, the Court reiterates that non-exhaustion of domestic remedies
cannot be held against the applicant if, in spite of the latter’s failure to
observe the formalities prescribed by law, the competent authority has
nevertheless examined the substance of the claim (see, mutatis mutandis, Dzhavadov v. Russia, no. 30160/04, § 27, 27 September 2007; Skałka v. Poland (dec.), no. 43425/98, 3 October
2002; Metropolitan Church of Bessarabia
and Others v. Moldova (dec.),
no. 45701/99, 7 June 2001; and Edelmayer v. Austria
(dec.), no. 33979/96, 21 March 2000).
The Court finds in the particular circumstances of the present case that, by
raising before the trial and appeal courts a complaint concerning ill-treatment
and the inadequacy of the investigation, the applicant provided the domestic
authorities with the opportunity to put right the alleged violation.
. It
follows that the applicant cannot be said to have failed to exhaust domestic
remedies because he did not lodge a separate judicial complaint against the
assistant prosecutor’s decision of 11 May 2004. Thus, the Government’s objection as to the non-exhaustion of domestic remedies must be dismissed.
The Court also 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 parties’ submissions
The applicant submitted that agents of the State
had subjected him to torture while in custody in order to make him confess to
the crimes he was accused of committing. He also considered that the
investigation in response to his complaints had fallen short of the standards
set forth in Article 3 of the Convention.
The Government denied the
applicant’s allegations of ill-treatment and considered them unsubstantiated,
referring to the findings of the inquiry conducted by the prosecutor in
response to the applicant’s complaint. The Government submitted that the investigation
had been effective, thorough, prompt and independent.
2. The Court’s assessment
(a) General principles
(i) Alleged ill-treatment
. The
Court reiterates that allegations of ill-treatment must be supported by
appropriate evidence. To assess this evidence, the Court adopts the standard of
proof “beyond reasonable doubt” but adds that such proof may
follow from the coexistence of sufficiently strong, clear and concordant
inferences or of similar unrebutted presumptions of fact (see Labita v. Italy [GC], no.
26772/95, § 121, ECHR 2000-IV).
. Where
an individual claims to have been injured by ill-treatment in custody, the
Government are under an obligation to provide a complete and sufficient
explanation as to how the injuries were caused (see Ribitsch v. Austria,
4 December 1995, § 34, Series A no. 336).
. The
ill-treatment must attain a minimum level of severity if it is to fall within
the scope of Article 3. The assessment of this minimum is
relative: it depends on all the circumstances of the case, such as the duration
of the treatment, its physical and/or mental effects and, in some cases, the
sex, age and state of health of the victim. In respect of a person deprived of
his liberty, recourse to physical force which has not been made strictly
necessary by his own conduct diminishes human dignity and is in principle an
infringement of the right set forth in Article 3 (see Assenov and Others v. Bulgaria, 28 October 1998, § 94, Reports
of Judgments and Decisions 1998-VIII).
(ii) Investigation into the allegations of
ill-treatment
The Court reiterates that where an individual
raises an arguable claim that he has been seriously ill-treated by the police
or other such agents of the State unlawfully and 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 [its]
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, cited above, § 102 ).
An obligation to investigate “is not an
obligation of result, but of means”: not every investigation should necessarily
be successful or come to a conclusion which coincides with the claimant’s
account of events; however, it should in principle be capable of leading to the
establishment of the facts of the case and, if the allegations prove to be true,
to the identification and punishment of those responsible (see Paul
and Audrey Edwards v. the United Kingdom, no. 46477/99,
§ 71, ECHR 2002-II, and Mahmut
Kaya v. Turkey, no. 22535/93, § 124, ECHR 2000-III).
An investigation into serious allegations of
ill-treatment must be thorough. That means that 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
for their decisions (see Assenov
and Others, cited above, §§ 103 et seq.). They must take all
reasonable steps available to them to secure evidence concerning the incident,
including,
inter alia, eyewitness testimony and forensic evidence (see, mutatis
mutandis, Salman
v. Turkey [GC], no. 21986/93, § 106, ECHR 2000-VII; Tanrıkulu
v. Turkey [GC], no. 23763/94, §§ 104 et seq., ECHR 1999-IV; and Gül
v. Turkey, no. 22676/93, § 89, 14 December 2000). Any
deficiency in the investigation which undermines its ability to establish the
cause of injuries or the identity of the persons responsible will risk falling
foul of this standard.
Furthermore, the investigation must be
expeditious. In cases examined under Articles 2 and 3 of the Convention,
where the effectiveness of the official investigation is at issue, the Court
has often assessed whether the authorities reacted promptly to the complaints
at the relevant time (see Labita,
cited above, §§ 133 et seq.). Consideration has been given to the starting
of investigations, delays in taking statements (see Timurtaş
v. Turkey, no. 23531/94, § 89, ECHR 2000-VI, and Tekin
v. Turkey, 9 June 1998, § 67, Reports
1998-IV), and the length of time taken to complete the initial
investigation (see Indelicato
v. Italy, no. 31143/96, § 37, 18 October 2001).
(b) Application of the principles to the present case
(i) Alleged ill-treatment
51. Turning to the
circumstances of the present case, the Court observes that the parties did not
dispute that the applicant had sustained the injuries while he was in custody.
Accordingly, the Government were under an obligation to provide a plausible
explanation of how those injuries were caused.
. The
Court accepts the Government’s explanation as to the origin of the scars on the
applicant’s left forearm. The applicant did not dispute the fact that he had slashed
his wrists on 12 October 2003. As to the other injuries (see paragraph 14 above), the Court notes that the Government, without
providing details, simply reiterated the domestic authorities’ findings that
the applicant had sustained the injuries in the course of arrest and that the
police officers had had to use force against him because he had resisted
arrest.
. The
Court finds such an explanation unconvincing. In its view, the domestic
authorities’ findings lack any specific details and contain no explanation as
to why the police officers had to injure the applicant on the head in order to
overcome his alleged resistance to arrest and to prevent him from fleeing. Nor
was any explanation furnished as to the cause of the cigarette burns on the
applicant’s body. As regards the traces of other injuries detected on the
applicant’s body, the forensic expert was unable to determine their origin. By
contrast, the applicant presented a consistent and detailed description of the
ill-treatment which corresponds to the nature and location of the recorded
injuries.
. In
these circumstances the Court considers that, even if the applicant did resist
arrest, the Government’s account provided only a very incomplete, and therefore
insufficient, explanation of the injuries concerned.
. On
the basis of all the material placed before it, the Court concludes that the
Government have not satisfactorily established that the applicant’s injuries
were caused otherwise than - entirely, mainly, or partly - by the treatment he
underwent while in police custody.
. The
applicant maintained that the ill-treatment to which he had been subjected
amounted to torture. The Government did not comment. The Court observes that the
applicant sustained injuries to his head and the wounds became infected. His
body was burnt with cigarettes and matches. Such treatment must have caused him
severe mental and physical suffering. Moreover, it appears that the use of
force was aimed at debasing the applicant, driving him into submission and
making him confess to criminal offences. Therefore, the Court finds that the ill-treatment
to which the applicant was subjected was serious enough to be considered as
torture.
57. Accordingly, there
has been a violation of Article 3 of the Convention under its substantive limb.
(ii) Adequacy of the investigation
. The Court observes
that the Russian authorities did carry out an inquiry into the applicant’s
allegations. It is not convinced, however, that the inquiry was sufficiently
prompt, thorough and effective to meet the requirements of Article 3 of the
Convention.
. The
Court notes that the materials submitted by the Government disclose a number of
significant omissions in the way the inquiry was conducted.
. It
appears that the administration of the remand prison where the applicant was taken
some nine days after his arrest was aware that the applicant had sustained
serious injuries (see paragraph 14 above).
However, they took no action in this respect. It was only about a year later
that the prosecutor’s office conducted an official inquiry into the applicant’s
allegations of ill-treatment. Accordingly, the Court considers that the
authorities’ attempt to elucidate the circumstances of the applicant’s arrest
and detention was belated.
. As
regards the scope of the inquiry, the Court notes that the prosecutor did not
take into account the medical documentation prepared by the remand prison
administration and corroborating the applicant’s allegations of ill-treatment.
Nor did he question the medical personnel of the remand prison or the applicant’s
relatives who had been present during the applicant’s arrest. The forensic
medical examination of the applicant was not conducted until a year after the
events in question, by then precious time had been lost and it had been impossible
to determine the cause or origin of the applicant’s injuries.
. Lastly,
the Court observes that the subsequent judicial proceedings did not remedy the
deficiencies of the prosecutor’s inquiry. The courts merely upheld the
prosecutor’s findings without rectifying the omissions of the inquiry.
63. Having regard to
the above, the Court finds that the authorities failed to carry out an
effective investigation into the applicant’s allegations of ill-treatment.
Accordingly there has been a violation of Article 3 of the Convention under its
procedural limb.
II. ALLEGED VIOLATION OF ARTICLE 13
OF THE CONVENTION
. The
applicant complained that the investigation into his allegations of
ill-treatment had been ineffective, in violation of Article 13 of the Convention, which provides:
“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
Court observes that this complaint concerns the same issues as those examined
above under the procedural limb of Article 3 of the Convention (see paragraphs 58-63 above) and should therefore be
declared admissible. However, having regard to its conclusion above under
Article 3 of the Convention, the Court considers it unnecessary to examine
those issues separately under Article 13 of
the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE
CONVENTION
The applicant complained under
Article 6 of the Convention that the criminal proceedings against him had
been unfair. In particular, he alleged that the domestic courts had violated
his right not to incriminate himself and had had regard to his confession given
under duress, that the trial court had not provided him with an opportunity to
confront a number of witnesses, that the counsel representing him during the
investigation stage had been assigned to him against his will; that he had not
had sufficient time to study the criminal case file; and that the trial court
had been partial. Article 6 § 1 of the Convention, in so far as
relevant, reads as follows:
“In the determination of ... any criminal charge against him,
everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
A. Admissibility
The Court notes that this part of the
application 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 parties’ submissions
The Government considered the applicant’s
allegations to be unsubstantiated. They submitted that before each questioning
the applicant had been advised of his right not to incriminate himself. Except
for one occasion, the applicant’s lawyer had been present during the
questioning. Each time, the applicant had said that he had made submissions
voluntarily and once he had chosen to remain silent.
The applicant maintained his complaint. He
claimed that he had not been advised of his right not to incriminate himself on
the day of the arrest and that all his confessions, testimonies and statements had
been made under torture.
2. The Court’s assessment
The Court notes that in
his original application and subsequent observations the applicant claimed that
the criminal proceedings against him had been unfair, contrary to Article 6 of
the Convention under several heads (see paragraph 66 above). Having examined the materials in its possession, the
Court does not consider it necessary to examine all of them; the Court will
concentrate on the applicant’s allegation that the domestic courts, when they convicted
him, had regard to confessions that he made under duress.
. In
this connection, the Court reiterates that it is not the role of the Court to
determine, as a matter of principle, whether particular types of evidence - for
example, evidence obtained unlawfully in terms of domestic law - may be
admissible. The question which must be answered is whether the proceedings as a
whole, including the way in which the evidence was obtained, were fair. This
involves an examination of the unlawfulness in question and, where the
violation of another Convention right is concerned, the nature of the violation
found (see, inter alia, Gäfgen v. Germany [GC], no. 22978/05, § 162,
ECHR 2010).
. Furthermore,
particular considerations apply in respect of the use in criminal proceedings
of evidence obtained in breach of Article 3. The use of such evidence, secured
as a result of a violation of one of the core and absolute rights guaranteed by
the Convention, always raises serious issues as to the fairness of the
proceedings, even if the admission of such evidence was not decisive in
securing a conviction (see Gäfgen, cited above, § 165).
. The
Court has found in earlier cases, in respect of confessions as such, that the
admission of statements obtained as a result of torture (compare Örs and Others v. Turkey,
no. 46213/99, § 60, 20 June 2006; Harutyunyan v. Armenia, no. 36549/03, §§ 63, 64 and 66, ECHR 2007-III; and Levinţa v. Moldova,
no. 17332/03, §§ 101 and 104-05, 16 December 2008) or of other ill-treatment in
breach of Article 3 (compare Söylemez v. Turkey, no. 46661/99, §§ 107 and 122-24, 21 September 2006) as
evidence to establish the relevant facts in criminal proceedings rendered the
proceedings as a whole unfair. This finding applied irrespective of the
probative value of the statements and irrespective of whether their use was decisive
in securing the defendant’s conviction (ibid.).
In the present case, the Court notes that the
self-incriminating statements made by the applicant following his arrest and
placement in police custody formed part of the evidence produced against him.
The trial and appeal court did not find those statements inadmissible and
referred to them when finding the applicant guilty and convicting him.
The Court further notes that it has already established
that the applicant was subjected to torture during his arrest and whilst in
police custody, that is, at the time when he was questioned and made statements
implicating himself in the crimes with which he was subsequently charged (see
paragraphs 51-57
above).
In such circumstances, the Court is not
convinced by the Government’s argument that the applicant’s confessions should
be regarded as having been given voluntarily in view of the fact that, during
the questioning, he had been assisted by a lawyer and advised of his right to
remain silent. It concludes that, regardless of the impact the applicant’s
statements obtained under torture had on the outcome of the criminal
proceedings against him, such evidence rendered the criminal proceedings
unfair. There has, accordingly, been a violation of
Article 6 § 1 of the Convention.
IV. ALLEGATION OF HINDRANCE IN THE EXERCISE OF
THE RIGHT OF INDIVIDUAL PETITION UNDER ARTICLE 34 OF THE CONVENTION
The applicant alleged that, following
communication of his complaints under Articles 3, 6 and 13 of the
Convention, his family had been subjected to persecution by the Russian
authorities. In particular, on 7 February 2010 an official at the
prosecutor’s office in Grozny had made threats to his mother and on
8 February 2010 someone had set the house where his family resided on
fire. The Court will examine this complaint from the
standpoint of the right of individual petition guaranteed by Article 34 of
the Convention, which reads:
“The Court may receive applications from
any person... claiming to be the victim of a violation by one of the High
Contracting Parties of the rights set forth in the Convention or the Protocols
thereto. The High Contracting Parties undertake not to hinder in any way the
effective exercise of this right.”
The Government considered the applicant’s
allegations unsubstantiated. In response, the applicant’s representatives
submitted a letter from his mother in which she agreed that the fire had not
been caused by arson.
The Court reiterates that the right of
individual petition under Article 34 of the Convention will operate
effectively only if an applicant can interact with the Court freely, without
being subjected to any form of pressure from the authorities to withdraw or
modify his or her complaints
(see Akdivar and Others v. Turkey,
no. 21893/93, § 105, ECHR 1996-IV). The expression “any form of pressure” must
be taken to cover not only direct coercion and flagrant acts of intimidation of
applicants or their legal representatives but also other improper indirect acts
or contacts designed to dissuade or discourage
them from pursuing a Convention remedy or having a “chilling effect” on the
exercise of the right of individual petition by applicants and their
representatives (see Fedotova v. Russia,
no. 73225/01, §§ 48-51, 13 April 2006; McShane
v. the United Kingdom, no. 43290/98, § 151, 28 May 2002;
and Tanrıkulu, cited above, §
130).
The Court notes that the Government did not
inform it of the progress in the investigation into the alleged arson, which
was reopened in 2010 in connection with the interview of the applicant’s mother
in the prosecutor’s office. In the circumstances of the case, the Court does
not have enough evidence before it to conclude that any undue pressure or form
of coercion was put on the applicant or his family in the course of the
proceedings before the Court.
Accordingly, the Court cannot find that the
Government failed to comply with their obligations set out in Article 34
of the Convention. It therefore concludes that there has been no hindrance to
the applicant’s right of individual petition.
V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly, the applicant complained that his
detention from 11 April to 20 June 2003 had been unlawful and that he
had been subjected to discrimination owing to his ethnic origin. He relied on
Articles 5 and 14 of the Convention.
Having regard to all the material in its
possession and in so far as it falls within its competence, the Court finds
that the evidence discloses no appearance of a violation of the rights and
freedoms set out in the Convention or its Protocols. It follows that this part
of the application must be rejected as being manifestly ill-founded, pursuant
to Article 35 §§ 3 (a) and 4 of the Convention.
VI. 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 120,000 euros (EUR) in
respect of non-pecuniary damage.
The Government considered the amount claimed
excessive.
The Court notes that it
has found a combination of serious violations in the present case: the
applicant was subjected to torture whilst in police custody; the investigation
into his allegations of ill-treatment was ineffective; the criminal proceedings
against him were unfair. In these circumstances, the Court considers that the
applicant’s suffering and anguish cannot be compensated for by a mere finding
of a violation. However, the amounts claimed appear excessive. Making its
assessment on an equitable basis and taking into account the gravity of the
ill-treatment, the Court awards the applicant EUR 45,000 in respect of
non-pecuniary damage, plus any tax that may be chargeable on that amount.
B. Costs and expenses
The applicant also claimed EUR 6,629.74 for
the costs and expenses incurred before the Court. In particular, he claimed EUR 5,925
for the work carried out by his representatives, who spent 41.4 hours preparing
the case and EUR 704.74 on office, translation and postal expenses. He submitted
receipts for 7,494 Russian roubles (RUB) in respect of translation services and
for RUB 2,712.82 in respect of DHL mail.
The Government did not comment.
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 2,260 covering costs under all heads,
plus any tax that may be chargeable to the applicant, to
be paid into the representatives’ bank account in the Netherlands, as
identified by the applicant.
C. Default interest
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 complaints concerning the
alleged ill-treatment of the applicant in police custody and the ensuing
investigation and unfairness of the criminal proceedings against him admissible
and the remainder of the application inadmissible;
2. Holds that there has been a violation of
Article 3 of the Convention under its substantive limb on account of the
applicant’s allegations of ill-treatment in custody;
3. Holds that there has been a violation of
Article 3 of the Convention under its procedural limb on account of the
authorities’ failure to carry out an effective investigation into the applicant’s
allegations of ill-treatment in custody;
4. Holds that there is no need to examine the
complaint under Article 13 of the Convention;
5. Holds that there has been a violation of
Article 6 § 1 of the Convention on account of the unfairness of the
criminal proceedings against the applicant;
6. Holds that the State
has not failed to meet its obligation under Article 34 of the Convention;
7. 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 Russian roubles at the rate applicable at the date of
settlement:
(i) EUR 45,000 (forty-five thousand euros), plus
any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 2,260 (two thousand two hundred and sixty
euros), plus any tax that may be chargeable to the applicant, in respect of
costs and expenses, to be paid into the Stichting Russian Justice Initiative’s
bank account in the Netherlands;
(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;
8. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 11 December
2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Isabelle
Berro-Lefèvre
Deputy Registrar President
