BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIRST
SECTION
CASE OF KOLPAK v. RUSSIA
(Application
no. 41408/04)
JUDGMENT
STRASBOURG
13 March 2012
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 Kolpak v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Peer
Lorenzen,
Elisabeth Steiner,
Khanlar
Hajiyev,
Linos-Alexandre Sicilianos,
Erik Møse,
judges,
and Søren Nielsen,
Section Registrar,
Having
deliberated in private on 21 February 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 41408/04)
against the Russian Federation lodged with the Court
under Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”) by a
Russian national, Mr Sergey Mikhaylovich Kolpak (“the
applicant”), on 28 September 2004.
2. The
applicant, who had been granted legal aid, was represented by
Ms O. Preobrazhenskaya, a lawyer from the
International Protection Centre situated in Moscow. The
Russian Government (“the Government”) were represented by
Mr G. Matyushkin, the Representative of the Russian Federation at the
European Court of Human Rights.
3. The
applicant alleged, in particular, that he had been ill-treated during
his arrest and in police custody on the night following his arrest,
and that no adequate investigation had been carried out into the
matter. He also complained that neither he nor his lawyer had been
summoned to an examination of his appeal against a decision of the
first-instance court by which his complaint against the warrant for
his arrest had been dismissed.
- On
21 October 2009 the President of
the First Section decided to give notice of the application 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 1969 and lives in St
Petersburg.
A. Criminal proceedings against the applicant
- On
17 December 1999 criminal proceedings were instituted in connection
with aggravated robbery with the use of firearms. It appears that
during those proceedings the applicant’s involvement in the
offence was established, but he absconded.
- By
a decision of 7 September 2000 the investigator in charge brought
formal charges against the applicant and ordered his arrest. He was
put on the federal wanted list on 11 September 2000.
- On
12 September 2000 the authorities disjoined the criminal case against
the applicant from the main set of criminal proceeding, and then on
12 November 2000 suspended the investigation pending the search for
the applicant.
- On 5 July 2001 the applicant was arrested on suspicion
of aggravated robbery and unlawful possession of firearms. The
investigation in the criminal case against the applicant was resumed
the following day. On 6 November 2001 the materials of the
criminal case against the applicant were sent to the St Petersburg
City Court for trial.
- In
a judgment of 8 February 2005 the St Petersburg City Court convicted
the applicant of aggravated theft and robbery and sentenced him to
ten years’ imprisonment. On 22 December 2005 the Supreme Court
of Russia upheld the applicant’s conviction on appeal.
B. Alleged ill-treatment of the applicant
- According
to the applicant, although he did not offer any resistance during his
arrest on 5 July 2001, police officers forced him to lie face down on
the ground, handcuffed him and beat him. In particular, they hit him
with a heavy object, presumably a pistol handle, on the back of his
head so that he started bleeding, and beat him in the kidney area.
- In
the applicant’s submission, he spent a night in a corridor of a
police station of the St Petersburg Department for the Fight against
Organised Crime, handcuffed to a radiator in a squatting position and
in the absence of any facilities enabling him to rest. At least three
times during that night he was taken for interviews to various
offices where police officers questioned and beat him, forcing him to
confess to offences which had apparently been imputed to him.
- On
6 July 2001 the applicant was taken to an investigator’s
office, formally charged with aggravated robbery, and questioned.
- According to the Government, on the same date the
investigator in charge, in the presence of two attesting witnesses,
drew up a report on the examination of the applicant. The relevant
report attested to the presence of abrasions on the back of the
applicant’s head and his back and stated that the applicant had
explained that “[he] had sustained those injuries on 5 July
2001, as he had fallen during his arrest”. It can be
ascertained from the report that one of the attesting witnesses was
the police officer who had effected the applicant’s arrest.
- The applicant then wrote an explanatory note in which
he stated that he had sustained the aforementioned injuries because
he had fallen during his arrest on 5 July 2001, and that he had no
complaints against the police officers. According to the applicant,
he was forced to write that explanation.
- The applicant was then transferred to a temporary
isolation ward where he was examined by a paramedic. As can be seen
from a letter from the administration of the temporary isolation ward
dated 5 June 2003, the paramedic established during that examination
that the applicant had abrasions on his back and the back of his head
and that he had made no complaints concerning his health. According
to the applicant, the paramedic’s report in which he had
described the applicant’s injuries later disappeared from the
applicant’s file.
- On the basis of the results of the aforementioned
examination, the applicant was taken to a trauma centre. There he was
issued with an injured person’s card (карточка
травматика)
indicating that he had no complaints and that he denied having
sustained any injuries. The card further stated that the applicant
had no visible injuries and no need of any medical treatment.
According to the applicant, he was not in fact examined by the
doctor, the latter having issued the card under pressure from the
police officers who had escorted the applicant to the centre.
- The applicant was returned to the temporary isolation
ward and, according to him, on 16 July 2001 he was transferred to
another detention facility.
C. The applicant’s complaints concerning the
alleged ill-treatment
- During the trial, on 7 February 2003, the applicant
complained before the St Petersburg City Court that he had been
ill-treated at the moment of his arrest. On 28 March 2003 the court
ordered an investigation into his allegations. In the same decision
the court extended the term of the applicant’s remand in
custody for three months, until 30 June 2003.
- Following an internal inquiry, on 14 May 2003 the
St Petersburg Prosecutor’s Office decided not to institute
criminal proceedings owing to lack of evidence that a crime had been
committed. The decision referred in particular to statements by the
investigator in charge of the applicant’s criminal case, who
had indicated that on 6 July 2001 he had questioned the applicant as
an accused and the applicant had read and signed a transcript of the
interview. An arrest warrant had been served on the applicant and he
had been sent to a temporary isolation ward where he had undergone a
medical examination which had established that he had had a haematoma
on the back of his head. Regarding the haematoma, the applicant had
explained that he had sustained that injury in a fall some time
before the arrest and that he had no complaints against the police
officers. The investigator in charge had also stated that during the
interview he had not seen any visible injuries on the applicant, and
that in the course of the preliminary investigation neither the
applicant nor his lawyer had lodged any complaints regarding the use
of any illegal methods by any officers of the law-enforcement
agencies. The decision further referred to statements of three police
officers who had effected the applicant’s arrest. The
statements were similar to those of the investigator in charge. The
officers had confirmed that they had forced the applicant to lie on
the ground and handcuffed him, stating that it had been rendered
necessary by the applicant’s conduct as he had made a sudden
move when he was told he was under arrest. However, they had denied
that they had used any unlawful violence on the applicant and had
indicated that they had not known how the applicant had sustained an
injury to the back of his head, which had been established during an
examination upon his arrival to the temporary isolation ward. The
decision thus concluded that the applicant’s allegations of
ill-treatment were unfounded.
- The applicant and his defence counsel challenged the
decision of 14 May 2003 before the Oktyabrskiy District Court of
St Petersburg (“the District Court”). They pointed in
particular to the discrepancy between the medical record attesting to
the presence of abrasions on the back of the applicant’s head
and his back, which had been drawn up in the temporary isolation
ward, and the medical record drawn up by the trauma centre which
stated that the applicant had had no visible injuries. The applicant
and his lawyer thus insisted that the internal inquiry had not been
full and objective. They also indicated that during the preliminary
investigation in the applicant’s case he had not lodged any
complaints of ill-treatment out of fear for his security, as he had
constantly been threatened by police officers.
- On 20 January 2004 the District Court rejected the
above complaint, stating that the decision of 14 May 2003 had been
lawful and well-founded and provided convincing reasons for the
refusal to institute criminal proceedings in respect of the
applicant’s complaints. The applicant’s allegations had
been investigated fully and in detail and had proved unfounded.
- The applicant appealed. He complained that the inquiry
into his allegations could not be regarded as objective as it had
been confined to interviewing the officers of the law-enforcement
agencies against whom he had made his allegations. He also complained
that his argument concerning the discrepancy between the medical
record drawn up in the temporary isolation ward and the one drawn up
in the trauma centre remained unexamined.
- On 31 March 2004 the St Petersburg City Court upheld
the first-instance decision on appeal. The court rejected as
unfounded the applicant’s complaint that only the officers
against whom he had made his allegations had been questioned during
the inquiry. In this connection the court noted that the materials of
the inquiry included the injured patient’s card of 6 July 2001,
which stated that the applicant had not complained of any injuries
and had no visible injuries. Also, when he had been admitted to the
temporary isolation ward the applicant was examined by a paramedic,
who had identified abrasions on his back and the back of his head;
however, the applicant had not made any complaints concerning his
health. The court further noted that during the inquiry the
investigator in charge and the police officers who had arrested the
applicant had been questioned and had given explanations which were
relied on in the decision of 14 May 2003. It concluded that the
first-instance court had thoroughly examined the materials of the
inquiry and had given a well-reasoned decision rejecting the
applicant’s complaint against the decision of 14 May 2003.
D. The applicant’s complaint against his arrest
- On
an unspecified date, the applicant also challenged in court the
warrant for his arrest which was issued by an investigator on 7
September 2000 and approved by a prosecutor on 12 September 2000. The
applicant alleged that although his arrest had been duly authorised
and the warrant in itself conformed to formal requirements, he had
not been notified of this document in due time. He explained in
particular that whilst he had been arrested on 5 July 2001, the
arrest warrant indicated that it had been served on him a day
earlier, on 4 July 2001. The applicant was also unsure whether the
signature attesting that the document had been served on him, was his
own. He insisted that he had not been shown the warrant until much
later and that therefore he had been deprived of the opportunity to
challenge it in time.
- By a decision dated 1 July 2004 the Moskovskiy
District Court of St Petersburg dismissed the applicant’s
complaint. On 19 October 2004 the St Petersburg City Court quashed
that decision on appeal on the ground that it was dated 1 July 2004
whereas the first-instance court had in fact examined the applicant’s
complaint on 2 July 2004.
- During a fresh examination which took place in the
presence of the applicant’s lawyer and the prosecution, in a
decision of 25 November 2004 the Moskovskiy District Court again
rejected the applicant’s complaint. The court observed that the
applicant had been arrested on 5 July 2001, as could be seen from the
relevant report; however, procedural documents, such as the
investigator’s decision by which the applicant was accused of
the criminal offences, had been served on him on 6 July 2001 and it
was on this latter date that the applicant had signed them. The court
further relied on the applicant’s statements that he had not
signed any documents before his arrest on 5 July 2001 and that on 6
July 2001 he had signed a number of documents during his interview.
In this connection the court noted that it could not be excluded that
the applicant had signed the warrant himself, having mistakenly put
the date of 4 July 2001. The court concluded that the arrest warrant
of 7 September 2000 had been lawful, as it had been duly issued by
the investigator in charge and approved by a prosecutor on
12 September 2000, and that therefore the applicant’s
complaints should not be allowed.
- By an interlocutory decision of 21 January 2005 the St
Petersburg City Court scheduled an examination of the applicant’s
appeal against the decision of 25 November 2004 for 8 February 2005.
The decision of 21 January 2005 included a note stating that a
letter informing the applicant of the date of the examination of his
appeal had been sent to the detention centre where he was being kept
at that time, and that the applicant’s lawyer had been apprised
of the date of the examination in person. There is no indication in
the decision as to whether the applicant received the aforementioned
letter. The applicant’s lawyer has also not confirmed whether
he was indeed informed of the date in question.
- On 8 February 2005 the St Petersburg City Court upheld
the decision of 25 November 2004 on appeal. The court stated, in
particular, that all the arguments advanced by the applicant in his
appeal had already been thoroughly examined by the first-instance
court and rejected in a reasoned decision.
- Neither
the applicant nor his lawyer attended the hearing before the
appellate court, whereas the prosecutor was present and requested
that the decision of 25 November 2004 be upheld on appeal. According
to the applicant, he received the decision of 8 February 2005 on 11
February 2005.
II. RELEVANT DOMESTIC LAW
- The
Russian Code of Criminal Procedure of 2002 (“the Code”)
in its Article 144 § 1 (examining information on criminal
offences) provides that an inquirer, inquiring body, investigator or
investigating body (below referred to as “the inquirer”)
have an obligation to check information on any committed or planned
criminal offence and, acting within their competence, to take a
decision in this respect. During such a check, the inquirer is
entitled to carry out documentary checks, inspections, to study
documents, objects and corpses and to involve specialists in those
checks.
- Article
145 § 1 (decisions taken based on the results of the examination
of information on criminal offences) states that based on the results
of the examination of information on criminal offences, the inquirer
shall decide whether to institute criminal proceedings or whether to
send information about a criminal offence for investigation by other
competent authorities.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that the police had beaten
him during and after his arrest and left him overnight in a squatting
position chained to a radiator in the corridor of a police station
with no rest facilities. He also complained that the investigation
into his allegations of ill-treatment had been ineffective. The
applicant relied on Article 3 of the Convention, which reads as
follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Alleged ill-treatment of the applicant
1. Submissions by the parties
- The
applicant insisted on his account of events of 5 and 6 July 2001. In
particular, during his arrest police officers had hit him with a
heavy object, presumably a pistol handle, on the back of his head and
had beaten him in the kidney area, even though he had not shown any
resistance. He had then been taken to a police station of the St
Petersburg Department for the Fight against Organised Crime where he
had spent a night chained to a heater in a squatting position.
Several times during that night he had been taken to offices for
questioning where the police had again beaten him in an attempt to
extract his confession to the imputed offences.
- The
applicant pointed out that the respondent Government did not deny the
fact that a number of injuries had been identified on him on 6 July
2001, when he had been under the State’s control. However, they
failed to provide any plausible explanation as to the origin of those
injuries.
- According
to the applicant, he had written the note, in which he had explained
that his injuries had been caused by a fall (see paragraph 15
above), under pressure from police officers and the investigator in
charge who had threatened him with more beatings. He argued that the
fact that the note had not provided any details of the alleged fall
proved that it had been written in a rush with the only aim of
shifting responsibility from the police for inflicting injuries on
him.
- The
applicant further admitted that he had indeed not raised his
complaint of ill-treatment until two years later, that is, during the
trial. He explained that he had not raised any such complaints during
the preliminary investigation out of fear for his safety, because he
had received threats from police officers.
- Overall,
the applicant insisted that he had been subjected to treatment in
breach of Article 3 of the Convention.
- The Government denied that the applicant had been
subjected to any form of treatment prohibited by Article 3 of the
Convention during or after his arrest. They acknowledged that
abrasions on the applicant’s back and the back of his head had
been found on 6 July 2001, when he had been in police custody;
however, they argued, with reference to the applicant’s
explanatory note of the same date, that he had sustained those
injuries because he had fallen the day before.
- According to the Government, it had not been possible
to establish the identity of the paramedic who had examined the
applicant or the reasons for which he had been sent to a trauma
centre because the relevant record of medical examinations carried
out of new arrivals at the temporary isolation ward had been
destroyed upon the expiry of the three-year time-limit for its
storage. The Government explained that the applicant had probably
been sent to a trauma centre because visible injuries had been
established on him by the paramedic at the temporary isolation ward.
They further submitted that the fact that a medical document issued
by that centre had attested that the applicant had had no injuries
could presumably be explained by the absence of the applicant’s
complaints in that regard during the examination by a doctor at the
trauma centre.
- The
Government also acknowledged that, following his arrest on the
evening of 5 July 2001, the applicant had been taken to a police
station of the St Petersburg Department for the Fight against
Organised Crime, where he had been left until 6 July 2001. In their
submission, it was impossible to establish the exact length of time
the applicant had spent there and the conditions in which he had been
kept, given that the aforementioned department had been closed.
- Furthermore,
the Government argued that during the preliminary investigation the
applicant had been interviewed on several occasions, but he had never
made any complaints concerning the alleged beatings. They pointed out
that it was not until two years later that the applicant had
complained for the first time about the alleged ill-treatment by the
police, when he made an allegation in that regard during the
examination of the criminal case against him by the first-instance
court. In the Government’s view, he raised this complaint
deliberately in an attempt to have his self-incriminating statements,
made during the preliminary investigation, rejected as inadmissible
evidence by the trial court.
- The Government thus insisted that it was before his
arrest that the applicant had sustained the injuries established on
him on 6 July 2001, and that therefore the infliction of those could
not be imputed to the authorities.
2. The Court’s assessment
(a) Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
(b) Merits
- The
Court has observed on many occasions that Article 3 of the
Convention enshrines one of the fundamental values of democratic
societies and as such prohibits in absolute terms torture or inhuman
or degrading treatment or punishment (see, for example, Aksoy v.
Turkey, 18 December 1996, § 62, Reports of Judgments and
Decisions 1996-VI, and Aydın v. Turkey, 25
September 1997, § 81, Reports 1997 VI). The Court
further indicates, as it 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 police
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. Otherwise, torture or
ill-treatment may be presumed in favour of the claimant and an issue
may arise under Article 3 of the Convention (see Tomasi v. France,
27 August 1992, §§ 108-11, Series A no. 241-A, and Selmouni
v. France [GC], no. 25803/94, § 87, ECHR 1999 V).
- 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). 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 v. Austria, 4 December 1995, §
34, Series A no. 336, and Salman v. Turkey [GC], no.
21986/93, § 100, ECHR 2000-VII).
- Where
domestic proceedings have taken place, it is not the Court’s
task to substitute its own assessment of the facts for that of the
domestic courts and, as a general rule, it is for those courts to
assess the evidence before them (see Klaas v. Germany, 22
September 1993, § 29, Series A no. 269). Although the Court
is not bound by the findings of the domestic courts, in normal
circumstances it requires cogent elements to lead it to depart from
the findings of fact reached by those courts (see Matko
v. Slovenia, no. 43393/98, § 100, 2 November 2006).
Where allegations are made under Article 3 of the Convention,
however, the Court must apply a particularly thorough scrutiny (see,
among other authorities, Vladimir Romanov v. Russia, no.
41461/02, § 59, 24 July 2008).
- Turning
to the present case, the Court observes that the Government
acknowledged that the day after the applicant’s arrest, namely
on 6 July 2001, the presence of injuries had been established on the
back of his head and on his back (see paragraphs 14
and 39 above).
- The Court further notes that the Government provided
somewhat conflicting explanations as regards the origin of those
injuries. On the one hand, they seem to have argued, with reference
to the findings of the domestic internal inquiry, that the applicant
had sustained the injuries prior to his arrest (see paragraphs 20
and 43 above). On the other hand, in support of
their relevant argument they also relied on a report of 6 July 2001
drawn up by the investigator in charge (see paragraph 14
above) and the applicant’s explanatory note, also of 6 July
2001 (see paragraph 15 above), both documents
explaining the origin of the applicant’s injuries as having
been sustained in a fall during his arrest.
- At
the same time, the fact that the applicant did not raise his
allegations of beatings by the police before the domestic authorities
until almost two years later reduces the credibility of his own
account of events. The Court observes in this respect that on 6 July
2001 the applicant was examined by a paramedic of a temporary
isolation ward and a doctor of a trauma centre. On neither of those
two occasions did the applicant complain either about his health or
about beatings by the police.
- The
Court does not overlook the applicant’s argument that he made
no such complaints out of fear for his safety, as he was allegedly
threatened by police officers. In this respect the Court notes that,
according to the applicant, he was mistreated on 5 and 6 July 2001,
when he was arrested and taken to a police station. On the latter
date, however, the applicant was transferred to a temporary isolation
ward, and it has never been alleged by him, nor any evidence has been
submitted, that after that transfer those police officers could have
easily reached him either in that ward or in another detention
centre, where he was transferred on 16 July 2001 (see paragraph 18
above), to realise their threats. In any event, even assuming that
the applicant feared for his safety throughout the preliminary
investigation, it was completed no later than on 6 November 2001,
when the applicant’s case was sent to a court for trial (see
paragraph 9 above). The applicant did not
provide any explanation as to why he did not raise his complaints
before the court once his case was sent there, but waited for over a
year. It is hardly conceivable that the applicant continued receiving
threats by the police during all that period.
- The
Court further observes that the evidence before it does not allow it
entirely to exclude either the Government’s or the applicant’s
version of events. Indeed, the injuries attested by a paramedic on 6
July 2001 could have been inflicted both as a result of the
applicant’s fall either before or during his arrest, as alleged
by the Government, and as a result of the use of excessive force by
the police, as alleged by the applicant. In the absence of any other
evidence which could have shed light on the events under examination,
the Court is unable to find it established that the applicant was,
indeed, ill-treated by the police during or after his arrest (see,
for similar reasoning, Khatayev v. Russia, no.
56994/09, §§ 108-10, 11 October 2011,
and Maksimov v. Russia, no. 43233/02, §§
80-82, 18 March 2010).
- As
regards the applicant’s allegation that following his arrest on
5 July 2001 he had been left overnight chained to a heater in a
squatting position with no possibility of having a rest, the Court
notes that the Government did not submit any information in this
respect with reference to the closure of the police department to
which the police station where the applicant had been kept had
belonged. It may be open to doubt that the closure of a police
department would necessarily require the destruction of all relevant
documents which could assist in establishing the circumstances of the
applicant’s detention during the night in question. However,
the Court observes that the applicant does not appear to have ever
raised a complaint that he had spent a night chained to a heater
before the domestic authorities; it appears that he described this
situation for the first time in his application to the Court. Against
this background, the Court is also unable to verify the applicant’s
account in its relevant part.
- Overall,
the Court finds that the materials in the case file do not provide an
evidential basis sufficient to enable it to conclude “beyond
reasonable doubt” that the applicant was subjected to any form
of treatment prohibited by Article 3 of the Convention, as alleged by
him. Accordingly, the Court finds that there has been no violation of
Article 3 of the Convention in its substantive aspect.
B. Alleged ineffectiveness of the investigation
1. Submissions by the parties
- The
applicant argued that the investigation into his allegations of
ill-treatment fell foul of the Convention requirements of
effectiveness. He pointed out that the only step that had been taken
during the internal inquiry had been interviewing the police officers
against whom his allegations had been directed and the investigator
in charge; no other measures had been taken. The applicant contended
that the credibility of the police officers’ statements had not
been checked, and no other witnesses, such as the paramedic from the
temporary isolation ward or the doctor from the trauma centre, had
ever been questioned. He also alleged that the paramedic’s
report listing his injuries, an important piece of evidence, had not
been included in the materials of the internal inquiry and, moreover,
had then disappeared from his file, and that he himself had never
been interviewed in connection with his allegations.
- Although
the applicant had not complained about the alleged ill-treatment
until almost two years later, the authorities should in any event
have carried out an inquiry immediately after his injuries had been
established.
- The
applicant also averred that neither he nor his lawyer had ever been
given access to the materials of the internal inquiry. He further
questioned the independence of the prosecutor’s office as the
body which had carried out the internal inquiry into his allegations
of ill-treatment. In the applicant’s view, the prosecutor’s
office, being a prosecuting party in the criminal case against him,
had not been interested in casting doubts on the admissibility of his
self-incriminating statements by establishing that they had been
obtained as a result of beatings by the police.
- According
to the Government, the applicant’s allegations of ill-treatment
had been duly investigated. An internal inquiry into his allegations
had been carried out which established that they had been unfounded.
In the course of the inquiry, the investigator in charge of his case
and the police officers who had arrested the applicant had been
interviewed.
- The
Government accepted that during that inquiry neither the paramedic
from the temporary isolation ward who had examined the applicant upon
his arrival, nor the doctor from the trauma centre had ever been
questioned. No explanation was provided by the Government as to the
conflict between the record drawn up in the temporary isolation ward
attesting to the presence of abrasions on the back of the applicant’s
head and his back, and the record drawn up in the trauma centre
stating that the applicant had had no visible injuries. They
maintained that the circumstances in which the applicant had
sustained the injuries identified on him on 6 July 2001 had been
described in his explanatory note (see paragraph 15
above).
2. The Court’s assessment
(a) Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
(b) Merits
- The
Court reiterates that where an individual makes a credible assertion
that he has suffered treatment infringing Article 3 at the hands of
the police or other similar agents of the State, that provision, read
in conjunction with the State’s general duty under Article 1 of
the Convention to “secure to everyone within their jurisdiction
the rights and freedoms defined in ... [the] Convention”,
requires by implication that there should be an effective official
investigation. As with an investigation under Article 2, such an
investigation should be capable of leading to the identification and
punishment of those responsible. Otherwise, the general legal
prohibition of torture and inhuman and degrading treatment and
punishment would, despite its fundamental importance, be ineffective
in practice and it would be possible in some cases for agents of the
State to abuse the rights of those within their control with virtual
impunity (see Jasar v. the former Yugoslav Republic of Macedonia,
no. 69908/01, § 55, 15 February 2007; Matko, cited
above, § 84; Labita v. Italy [GC], no. 26772/95, §
131, ECHR 2000-IV; and Assenov and Others v. Bulgaria, 28
October 1998, § 102, Reports 1998 VIII).
- The
minimum standards of “effectiveness” defined by the
Court’s case-law also require that the investigation must be
independent, impartial and subject to public scrutiny, and that the
competent authorities must act with exemplary diligence and
promptness (see, among many other authorities, Menesheva v.
Russia, no. 59261/00, § 67, ECHR 2006 III). In all
cases the victim must be involved in the procedure to the extent
necessary to safeguard his or her legitimate interests (see, mutatis
mutandis, Shanaghan v. the United Kingdom, no. 37715/97,
§§ 91-92, 4 May 2001).
- The
Court observes that the applicant’s allegations of
ill-treatment were examined during an internal inquiry ordered by the
St Petersburg City Court on 28 March 2003 (see paragraph 19
above), that is, almost two years after the events complained of by
the applicant. The Court takes into account that the parties agreed
that the applicant had never raised any such complaints earlier. In
this connection, however, it accepts the applicant’s argument
that the identification in police custody on 6 July 2001 of fresh
injuries on the applicant – this fact not being in dispute –
should, in principle, have prompted the authorities duly to inquire
as to the origin of those injuries. Yet, it does not appear that the
investigator in charge made any meaningful effort in this respect.
- In
any event, even after the internal inquiry was commenced in 2003, it
can hardly be said to have been adequate. Indeed, the existence of
injuries on the applicant on 6 July 2001 was never called into
question. Nevertheless, as was pointed out by the applicant at the
domestic level (see paragraph 23 above) and in
his submissions to the Court, the inquiry in question was limited to
interviewing the police officers against whom the applicant had made
his allegations and the investigator in charge who had investigated
the criminal case against the applicant. It comes as no surprise that
these officials denied the applicant’s allegations of
ill-treatment.
- The
Court accepts the applicant’s argument that the authorities
made no attempts to investigate his relevant complaints any further
or to verify the credibility of the aforementioned officers’
statements. It notes in this respect that it falls to the State to
have recourse to a procedure which would enable it to take all
measures necessary for it to comply with its positive obligation to
investigate imposed by Article 3 of the Convention.
- The
Court furthermore notes that the authorities never interviewed
important witnesses such as the paramedic, who had identified
injuries on the applicant upon his transfer to the temporary
isolation ward (see paragraph 16 above), and the
doctor from the trauma centre where the applicant was later taken
(see paragraph 17 above). The paramedic’s
identity could have been easily established, given that the relevant
documents were not yet destroyed at the time when the inquiry was
being conducted (see paragraph 40 above). Also,
there is no evidence that either the authority which carried out the
internal inquiry, or the domestic courts at two levels of
jurisdiction ever tried to resolve the conflict between the record
drawn up in the temporary isolation ward attesting to the presence of
abrasions on the back of the applicant’s head and his back, and
the record drawn up in the trauma centre stating that the applicant
had had no visible injuries, despite the applicant’s attempt to
attract their attention to this discrepancy (see paragraph 21
above). The authorities at various levels seem to have satisfied
themselves with the explanation that the applicant made no complaints
about his health (see paragraphs 20 and 24
above).
- Furthermore,
there is no information that the authorities paid any attention, or
attempted to resolve, the conflict between the report of 6 July 2001
drawn up by the investigator in charge stating that, according to the
applicant, he had sustained his injuries because he had fallen at the
time of his arrest (see paragraph 14 above), and
an interview given by the investigator in the course of the
preliminary inquiry, in which he said that the applicant had
explained that a haematoma on the back of his head had been caused by
a fall some time before his arrest (see paragraph 20
above).
- The
Court further notes that throughout the inquiry the applicant was not
questioned in connection with his allegations. Moreover, it does not
appear that he or his lawyer were able to access the materials of
that inquiry.
- The
aforementioned failings and shortcomings are sufficient to enable the
Court to conclude that the inquiry into the applicant’s
allegations of ill-treatment was inadequate and ineffective.
- Accordingly,
there has been a violation of Article 3 of the Convention on that
account.
II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE
CONVENTION
- The
applicant complained that neither he nor his
lawyer had been duly summoned for, and had therefore been unable to
attend, the examination of his appeal against the decision of the
first-instance court of 25 November 2004 by which his complaint
against the arrest warrant had been dismissed. This complaint falls
to be examined under Article 5 § 4 of the Convention, which
provides as follows:
“Everyone who is deprived of his liberty by arrest
or detention shall be entitled to take proceedings by which the
lawfulness of his detention shall be decided speedily by a court and
his release ordered if the detention is not lawful.”
A. Submissions by the parties
- The
applicant argued that neither he nor his lawyer had been duly
notified of the examination on 8 February 2005 of his appeal against
the decision of 25 November 2004 by which his complaint against his
arrest warrant had been dismissed. He pointed out that the decision
of the appeal court of 8 February 2005 had not indicated whether it
had checked that the applicant and his lawyer had been duly notified
of the examination of the applicant’s appeal.
- The
applicant stated that on the date in question he had been taken to
the court premises in connection with the delivery of the trial
court’s judgment in his criminal case; however, he had not been
informed that on the same date his appeal against the decision of 25
November 2004 had been examined. He contended that a situation in
which neither he nor his lawyer had participated in the examination
of his appeal while the prosecution had been present and able to
present arguments violated his rights under Article 5 § 4.
- The
Government argued, with reference to the interlocutory decision of 21
January 2005 (see paragraph 28 above), that both
the applicant and his lawyer had been duly informed of the date of
the examination of the applicant’s appeal against the decision
of the Moskovskiy District Court of 25 November 2004. Nevertheless,
in breach of the relevant requirements of the Russian procedural law,
neither the applicant nor his counsel had ever lodged any request to
secure their participation in that examination. Moreover, on the date
when the St Petersburg City Court examined the applicant’s
appeal against the decision of 25 November 2004, the applicant had
been taken to the court premises in connection with the delivery of
the judgment in the criminal case against him. However, he made no
requests to ensure his participation in the examination of his appeal
against the decision of 25 November 2004. The Government therefore
argued that the applicant had, in fact, waived his right to
participate in the examination of his appeal.
- The
Government also argued that in his appeal against the decision of 25
November 2004 the applicant had not advanced any arguments that had
not already been examined by the first-instance court. Therefore, in
their opinion, the requirements of Article 5 § 4 of the
Convention had not been breached in the present case.
B. The Court’s assessment
- The
Court observes at the outset that the parties disagreed as to whether
the applicant and his lawyer had been duly notified of the date on
which the examination of the applicant’s appeal against the
decision of 25 November 2004 had been scheduled. The Government
insisted that the applicant and his counsel had been made aware of
the date in question, given that the interlocutory decision of 21
January 2005 by which the hearing in question had been scheduled for
8 February 2005 indicated that a letter informing the applicant of
that decision had been sent to the applicant’s detention centre
and that his lawyer had been apprised of it in person (see paragraph
28 above). The applicant contended that neither
he nor his counsel had ever been informed of the date of the
examination of his appeal. The question arises whether the decision
of 21 January 2005 could serve as a reliable piece of evidence
proving that the applicant and his lawyer were duly notified of the
appeal hearing, as the decision contained no information as to
whether the applicant had received the letter. Similarly, the
decision bears no signature of the applicant’s lawyer or any
other marks to confirm that the lawyer was, indeed, duly notified of
the date of the hearing. The Court, however, will leave this question
open, as, in its opinion, the present complaint is in any event
inadmissible for the following reasons.
- The
Court reiterates that Article 5 § 4 deals only with those
remedies which must be made available during a person’s
detention with a view to that person obtaining speedy judicial review
of the lawfulness of the detention capable of leading, where
appropriate, to his or her release. The provision does not deal with
other remedies which may serve to review the lawfulness of a period
of detention which has already ended (see, for instance, Slivenko
v. Latvia [GC], no. 48321/99, § 158, ECHR 2003 X).
- In
the present case, the applicant failed to specify the date on which
he lodged with a court his complaint against the arrest order of 7
September 2000. However, in the absence of any allegations on the
part of the applicant which would enable the Court to conclude that
the applicant’s complaint had not been examined speedily, the
Court finds it reasonable to assume that the complaint was lodged
shortly before it was examined for the first time by the Moskovskiy
District Court of St Petersburg in July 2004 (see paragraph 26
above). In the absence of any information to the contrary, this means
that by the time the applicant lodged his complaint against the
arrest order of 7 September 2000, his detention on remand had
presumably been extended on several occasions by other orders.
Consequently, that order no longer formed the basis for the
applicant’s detention, and therefore the judicial review of the
lawfulness of that order was devoid of any useful purpose, being
incapable of leading to the applicant’s release (see, in a
somewhat similar context, Starokadomskiy v. Russia, no.
42239/02, § 86, 31 July 2008).
- In
any event, the applicant was represented before the first-instance
court by a lawyer who had been able to state the applicant’s
case (see paragraph 27 above). Moreover, in his
appeal submissions the applicant did not raise any arguments other
than those already examined and rejected by the first-instance court
(see paragraph 29 above). It has never been
alleged by him that he or his lawyer intended to advance any new
arguments other than those summarised in his written pleadings. In
such circumstances, the Court is unable to agree with the applicant
that his and his lawyer’s presence was necessary at the appeal
hearing of 8 February 2005 for the guarantees of Article 5 § 4
to have been respected in his case.
- The Court therefore finds that the present complaint
is manifestly ill-founded and must be rejected in accordance with
Article 35 §§ 3 (a) and 4 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant raised various complaints relating to the lawfulness of
his detention between 6 and 16 July 2001, the fact that the warrant
for his arrest was issued long before his arrest was effected, that
he was not brought promptly before a judge following his arrest, and
various irregularities in the proceedings by which he challenged the
decision of 14 May 2003 not to institute criminal proceedings
into his allegations of ill-treatment. He relied on Article 5 §§
1 (c) and 3, and Articles 6, 13 and 17 of the Convention.
- Having
regard to the materials in his possession the Court finds that these
complaints, in so far as they fall within its competence, do not
disclose any appearance of a violation of the rights and freedoms set
out in the Convention.
- It follows that this part of the application is
manifestly ill-founded and must be rejected in accordance with
Article 35 §§ 3 (a) 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 2,000,000 euros (EUR) in
respect of non-pecuniary damage.
- The
Government contested that amount as excessive.
- The
Court notes that it has found a violation of Article 3 of the
Convention on account of the lack of an effective investigation into
the applicant’s allegations of ill-treatment by the police. The
applicant must have suffered anguish and distress on account of those
infringements of his rights. Having regard to these considerations
and judging on an equitable basis, the Court finds it reasonable to
award the applicant EUR 10,000 under this head, plus any tax that may
be chargeable on this amount.
B. Costs and expenses
- The
applicant also claimed EUR 1,400 for the costs
and expenses incurred before the Court. He submitted a detailed
invoice of costs and expenses which included research and drafting
documents at a rate of EUR 60 per hour.
- The
Government stated that, according to the Court’s case-law, an
applicant was entitled to reimbursement of their costs and expenses
only in so far as it had been shown that those had been actually
incurred and were reasonable as to the quantum.
- The
Court reiterates that 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 is satisfied that
the expenses in question were actually incurred. It further considers
their amount to be reasonable. The Court therefore awards EUR 1,400,
that is, the full amount claimed, under this head, less EUR 850
already received by way of legal aid from the Council of Europe, plus
any tax that may be chargeable to the applicant on this amount.
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 of the Convention admissible and the remainder of the
application inadmissible;
- Holds that there has been no violation of
Article 3 of the Convention in its substantive aspect;
- Holds that there has been a violation of Article
3 of the Convention in its procedural aspect;
- 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
10,000 (ten thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
550 (five hundred and fifty euros), plus any tax that may be
chargeable to the applicant, in respect of costs
and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 13 March 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
