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FIRST
SECTION
CASE OF MOGILAT v. RUSSIA
(Application
no. 8461/03)
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 Mogilat 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,
Mirjana Lazarova Trajkovska,
Julia
Laffranque, 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. 8461/03)
against the Russian Federation lodged with the Court
under Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”) by a
Ukrainian national, Mr Ruslan Alekseyevich Mogilat (“the
applicant”), on 13 February 2003.
- The
applicant, who had been granted legal aid, was represented by
Ms M. Samorodkina, a lawyer practising in Moscow. The
Russian Government (“the Government”) were represented by
Ms V. Milinchuk, the then Representative of the Russian Federation at
the European Court of Human Rights.
- On
6 November 2007 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 1971. The applicant’s home
address after his release from detention in 2003 was not provided.
A. Alleged ill-treatment in the police station
1. Arrest of the applicant
- As established in the criminal case against the
applicant (see paragraph 26 below), on 6 November 2001, at
around 5 a.m., the applicant and an accomplice attempted to steal a
car. A person residing in the neighbourhood called the police. Seeing
that his accomplice had been apprehended by two officers, the
applicant ran off and did not stop despite warnings from officer S.,
who was pursuing him. Later on, this officer stated under oath that
after he had fired a warning shot in the air he saw the applicant
fall into an opening for water drainage. Having been asked to stand
up and move into a lighted area, the applicant, as perceived by S.,
adopted a threatening stance and moved forward to inflict a blow on
S. To prevent resistance, the officer inflicted a blow to the
applicant’s chest and used martial arts. The applicant fell to
the ground and was handcuffed. Officer S. subsequently confirmed his
earlier description of the arrest during a confrontation with the
applicant. Another officer, K., was interviewed and also confirmed
S.’s description of the arrest.
- According to the applicant, early in the morning of 6
November 2001, when he was about to answer the call of nature on the
street, a car stopped nearby and he saw a gun being pointed at him
from the car window. Fearing for his life, he started to run away.
However, hearing a gun shot and “Stop, police!”, he lay
down on the ground and did not resist.
2. Detention in the police station
- After
the arrest the applicant was taken to the Kryukovo district police
station in Moscow (ОВД
«Крюково»
г. Москвы). In
the police station, field service officer Ma. interviewed the
applicant from 11.30 a.m. to 11.40 a.m. The interview record
indicates that the applicant was informed of his right under Article
51 of the Constitution and that “in addition to his earlier
statement” the applicant also mentioned his previous
convictions.
- Investigator M. ordered field service officer G. to
interview the applicant. Officer G. interviewed the applicant from
12.25 p.m. to 1 p.m. The applicant admitted that he had opened the
door of the car with a screwdriver and had tried to start up the
engine.
- As can be seen from another interview record signed by
investigator M., after the above-mentioned interviews the applicant
requested legal assistance and named as his representatives the
advocate Mr Koblev and Ms Chuvilova, who was not an advocate but
worked for a non-governmental organisation. According to the
applicant, the investigator refused permission to call his
representatives or otherwise notify them of his arrest (see, however,
paragraph 12 below).
- According
to the applicant, at the police station he was ill-treated by the
operational officer who took his confession to the car theft. The
applicant was handcuffed to a chair and punched and kicked. The
officer put a gas mask on his face and blocked the air vent on it
(see also paragraph 14 below).
- At 3.15 p.m. the applicant was examined for alcohol
intoxication at a Moscow clinic. According to the record, the
applicant was not intoxicated and had no cuts or bruises but his
clothing was dirty.
- At 10 p.m. Ms Chuvilova arrived to see the applicant.
On seeing injuries on his face and body, she called for an ambulance.
It arrived and took the applicant to an emergency medical centre. The
record of his admission there reads as follows:
“Pain on the bridge of the nose, ribs X and XII on
the right side, and especially in the right wrist in the area of I
metacarpal bone I ... [illegible] ... Dark blue haematomas on the
body (the left side of the chest) and nose.”
The
applicant’s chest and right wrist were X-rayed. The X-rays
disclosed no fractures. It was concluded in the discharge certificate
that the applicant was fit to remain in police custody.
- On 7 November 2001 investigator M. interviewed the
applicant in the presence of his counsel Mr Koblev. The interview
concerned the alleged ill-treatment of the applicant, and the
interview record reads, in the relevant part, as follows:
“Mr Koblev: During this interview I have observed
haematomas on your right ear and your nose. I also see that your
right hand is bandaged. Please explain when and where these injuries
were caused.
Answer by Mr Mogilat: These injuries were inflicted on
me during an interview with an operational officer whom I can
identify. This happened in office no. 213 of the Kryukovo police
station. In addition to these injuries, I have bruises all over my
body ...
Question for Mr Mogilat: When you were arrested by
police officers at 5 a.m. on 6 November 2001, did you attempt to
flee or resist the arrest? Did the police officers use any special
measures or means, martial arts or firearms?
Answer by Mr Mogilat: During the arrest I attempted to
escape, but after a police officer fired a shot in the air, I lay
down and did not resist. They handcuffed me and took me to a police
station ...”
The
applicant’s counsel requested an inquiry to be ordered without
delay and that the applicant be immediately examined by a forensic
medical expert.
- During an interview with an assistant to the public
prosecutor on 8 November 2001 the applicant described the
operational officer in question in more detail:
“On 6 November 2001, at or around 11 or 12 a.m., I
was in office no. 213 of the Kryukovo police station together with
the operational officer, who was 175 to 180 cm tall, had a round face
and dark brown hair and was stocky. Following the beatings he must
have had a bleeding abrasion on his hand. At first I was handcuffed
to a chair. The officer told me to sign a statement which indicated
that I had tried to hijack the car. I refused to sign and he started
hitting and kicking me all over my body; I do not remember the
details as I was in a state of shock. Then he put a dark brown gas
mask on me and blocked the air vent, and I felt a sudden strong blow
to my head ... I signed the interview record. The handcuffs had to be
removed with the aid of a hammer ... I would be able to identify the
officer who ill-treated me ... A blow from the hammer used to remove
the handcuffs left traces on the office table ...”
The
applicant’s counsel, Mr Kovlev and Ms Chuvilova, were present
at the interview and reiterated their request for an immediate expert
examination of the applicant. Such an examination was carried out in
December 2001 (see paragraph 16 below).
- On 9 November 2001 investigator M. ordered the
applicant’s continued detention. The investigator referred to
the “gravity of the crime committed by Mr Mogilat” and
the risk that he would flee the investigation or trial. The
prosecutor of the Zelenogradskiy district of Moscow countersigned the
decision.
3. The inquiry into the allegation of ill-treatment and
the applicant’s criminal trial
- On 4 December 2001 investigator Ts. from the
Investigations Unit of the Kryukovo police station submitted the
applicant’s medical documents for a forensic examination in
order to determine the extent and origin of the applicant’s
injuries. On 6 December 2001 the expert returned the following
findings:
“During the examination [the applicant] was
aggressive. When asked to get undressed, he swore and threatened to
complain to the Strasbourg court. He wanted to be assisted by counsel
in answering the questions raised before the expert ...
Having examined [the applicant], the medical hospital
record and two X-rays, I have reached the following conclusions:
Having examined [the applicant] on 4 December 2001 (that
is, one month after the events) I have not detected any injuries or
traces of injuries ... The medical record from the hospital referred
to haematomas on the right hand, chest and face. I note in this
connection that the medical record has insufficient information about
the morphological characteristics of the injuries, such as quantity,
form, size, and exact anatomic location. Thus it is difficult to
provide answers to certain questions raised by the requesting
authority.
It follows that the following injuries were caused to Mr
Mogilat: a haematoma on the right hand followed by oedema, a
haematoma on the left side of the chest and a haematoma on the nose.
These bodily injuries have no forensic qualification and their
gravity cannot be determined because they did not entail temporary
disability for up to 21 days ... The injuries could have been caused
as a result of impact by a hard object(s)... it is possible that they
could have been caused on 6 November 2001 in the circumstances
described in the file ...”
- On
18 December 2001 the applicant read the expert report and requested
that an alternative expert report be commissioned because he had not
been informed of the investigator’s decision of 4 December
2001 to request an expert report and he had thus not been able to
suggest questions to be raised before the expert. This request for a
new expert report was rejected.
- It appears that on an unspecified date Ms Chuvilova
was interviewed in relation to the applicant’s complaint of
ill-treatment. The applicant also confirmed his earlier allegations.
- Several
other persons were interviewed by unspecified officials during the
inquiry. Arresting officers S. and K. claimed that the applicant had
resisted arrest and that they had resorted to martial arts.
Investigator M. stated that he had not seen any injuries on the
applicant and that he had asked officer G. to conduct the interview.
Officer G. denied that he had used force against the applicant in the
police station. This officer also maintained that the applicant had
confessed voluntarily.
- On
an unspecified date, the inquiry file into the allegation of
ill-treatment was submitted to an assistant to the Zelenogradskiy
district prosecutor.
- On
26 December 2001 Ms Chuvilova filed a complaint with the
Zelenogradskiy District Court of Moscow alleging violations of the
applicant’s rights on account of ill-treatment by the police,
the conducting of interviews in the absence of counsel, the belated
commissioning of a forensic examination, and the lack of an
investigation into the allegations of ill-treatment.
- On
29 December 2001 the assistant to the district prosecutor issued a
decision refusing the institution of criminal proceedings in relation
to the applicant’s allegations of ill-treatment. On the basis
of the testimony of above-mentioned witnesses, the medical report and
the applicant’s own statements, the assistant to the prosecutor
found that the injuries could have been caused during the applicant’s
arrest and that there was no indication of abuse of power on the part
of officer G. The Zelenogradskiy deputy prosecutor approved the
assistant’s decision not to prosecute. It appears that the
applicant’s counsel received a copy of that decision at the
beginning of the trial in the applicant’s own criminal case.
- By a letter of 24 January 2002, a judge of the
District Court forwarded Ms Chuvilova’s complaint of 26
December 2001 to the Moscow city prosecutor. Ms Chuvilova
complained to the Moscow City Court that the District Court had not
taken any procedural decision on her complaint. She received no reply
from the City Court. Instead, on 18 February 2002 the District
Court issued a decision by which it declared itself not competent to
examine the complaint on the ground that such matters were not
amenable to judicial review.
- According
to the Government, on 28 February 2002 another refusal to institute
criminal proceedings was issued in relation to the applicant’s
allegation of ill-treatment. In the Government’s submission,
this document could not be submitted to the Court because of the
destruction on an unspecified date of the inquiry file containing
this document, due to the expiry of the retention period.
- On
an unspecified date, the criminal case against the applicant was set
for trial before the District Court. The applicant pleaded not
guilty. Ms Chuvilova was removed from the proceedings by a
decision of 2 April 2002 with reference to her previous
questioning as a witness in relation to the allegation of
ill-treatment.
- On 18 April 2002 the District Court convicted the
applicant as charged and sentenced him to five years and three
months’ imprisonment. The District Court addressed the issue of
the applicant’s injuries in the following manner:
“During the pre-trial investigation and the trial
the applicant repeatedly claimed that he had been severely beaten by
police/operational officers and that he had been taken to a trauma
unit and been treated for injuries by the emergency squad. The court
does not doubt the fact that the defendant sustained some injuries
because his arrest, as it has been established, was accompanied by
the use of force. Mr S. hit him in the stomach and used martial arts
on him, which certainly does not preclude some bodily injury ... A
forensic medical expert issued a report ... The district prosecutor’s
office carried out an inquiry into the applicant’s complaint.
The inquiry did not confirm the facts alleged by Mr Mogilat and the
institution of criminal proceedings was refused.”
- On 22 April 2002 the City Court quashed the decision
of 18 February 2002 (see paragraph 23 above) and remitted the
matter for a new examination by the District Court (see also
paragraph 30 below).
- The
applicant appealed against his conviction and sought leave to be
represented by Ms Chuvilova, but the court refused his request,
noting that the applicant already had two lawyers, Mr Koblev and
Mr Kozlov. On 17 June 2002 the City Court upheld the conviction.
Following an application for supervisory review lodged by the
President of the City Court, the Presidium of the City Court quashed
the appeal judgment on unspecified grounds and remitted the matter
for a new appeal hearing.
- On 26 July 2002 the City Court scheduled a new appeal
hearing for 7 August 2002 and ordered that the applicant’s
lawyers be informed accordingly and that the applicant should
participate in the hearing by way of a video link from his detention
facility. On 7 August 2002 one of the lawyers asked the City Court to
adjourn the hearing because the other lawyer was participating in
other unrelated proceedings. The City Court granted his request and
fixed a hearing for 13 August 2002. The text of the adjournment order
indicates that the lawyer was to inform his absent colleague of the
adjournment. The adjournment decision sets out the lawyer’s
undertaking to this effect and bears his signature. It is also
indicated in the order that on 8 August 2002 the presiding judge left
a telephone message with the absent lawyer’s office about the
adjournment. On 13 August 2002 the appeal court held a hearing. On
the same date, the appeal court issued an appeal decision upholding
the conviction. The text of the decision indicates that the court
heard the applicant and his lawyers.
- In the meantime, on 10 July 2002 the District Court
re-examined Ms Chuvilova’s complaint about various
violations of the applicant’s rights at the pre-trial stage of
the proceedings (see paragraphs 23 and 27 above). Referring to
Article 125 of the Code of Criminal Procedure, in force since 1 July
2002, the District Court noted that the applicant had already been
convicted at final instance and that Ms Chuvilova had been removed
from the proceedings by a decision of 2 April 2002 which had not
been appealed against. On the merits of the complaint, the District
Court ruled as follows:
“As regards the substance of Mrs Chuvilova’s
arguments, the court has established that all these arguments were
examined by the court in the criminal proceedings against Mr Mogilat;
certain pieces of evidence were declared inadmissible ... The trial
court made an appropriate legal assessment of these arguments ... ”
On 15
August 2002 the Moscow City Court summarily upheld that decision.
- On
25 October 2002 Mr Kozlov sought supervisory review of the trial and
appeal judgments in the criminal case against the applicant.
- On 10 April 2003 the Presidium of the City Court
upheld the judgment and reduced the applicant’s sentence to
four years’ imprisonment. The applicant’s arguments were
summarised as follows in the Presidium’s decision:
“... The appeal decision does not comply with the
requirements of law because it does not contain responses to the
entirety of the defence’s arguments as presented in the
statements of appeal. Nor does it contain sufficient reasoning for
rejecting certain points of appeal. Moreover, the appeal hearing did
not remedy the shortcoming previously identified by the
supervisory-review court.”
As to
the alleged ill-treatment, the Presidium held as follows:
“The trial court found that [the applicant] had
sustained injuries during his arrest; he had attempted to leave the
crime scene. The police officers had had to use firearms and martial
arts. As stated by the witness S., after his warning shot [the
applicant] had fallen into an opening for water drainage ... his
clothes were dirty.”
- The
applicant was released in December 2003.
B. Conditions of detention
- From
10 to 13 November 2001 the applicant was held in a temporary
detention centre and was then transferred to Moscow remand centre
no. 77/5.
- Allegedly,
the applicant was not given any food on the days of the court
hearings between 28 March and 18 April 2002. He had to wake up at
5 a.m. and was taken back to his cell in the detention facility
at 11 p.m. His cell was overcrowded and the material conditions were
unsatisfactory.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
RSFSR Code of Criminal Procedure of 1960 was, in its major part, in
force until 1 July 2002. Article 113 of the Code provided that a
prosecutor, an investigator or a court could issue a refusal to
institute criminal proceedings. An appeal against such a refusal
could be brought before a competent prosecutor or a higher court. In
a ruling of 29 April 1998 the Constitutional Court of Russia held
that judicial review of a refusal issued by a prosecutor or an
investigator should be available.
- Article 218 of the Code provided that a complaint
against actions on the part of investigating authorities had to be
brought before a prosecutor. In a ruling of 23 March 1999 the
Constitutional Court considered that judicial review of actions or
inaction on the part of investigating authorities or a prosecutor
should be made available. The Constitutional Court considered that on
receiving a criminal case with a bill of indictment, a trial court
should be empowered to review procedural actions taken during the
pre-trial stage of the proceedings. Such review should also concern
decisions taken by investigating authorities which had resulted in a
limitation of rights and freedoms. The availability of judicial
review only after the closure of the preliminary investigation was
not judged to be incompatible with the Constitution; however, it was
noted in that connection that if pre-trial decisions seriously
affected rights and freedoms beyond the scope of criminal procedure,
judicial review even before the closure of the preliminary
investigation should be made available. However, the Constitutional
Court stated that in a judicial review procedure a court should not
prejudge matters relating to the scope of a criminal trial in the
main case.
THE LAW
I. THE ALLEGED ILL-TREATMENT AND SUBSEQUENT INVESTIGATION
- The
applicant complained under Articles 3, 6 and 13
of the Convention that he had been ill-treated and that there had
been no effective investigation into his complaint. The Court will
examine these complaints under 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. The parties’ submissions
1. The Government
- The
Government submitted that since the applicant had resisted a lawful
arrest, the officers had had to use physical force and handcuffs on
him. The inquiry into his allegation of the excessive use of force,
including the expert assessment of the bodily harm sustained, had
been prejudiced by the belated introduction of the complaint by the
applicant’s lawyer.
- Furthermore,
the Government argued that the applicant had failed to seek judicial
review of the refusal to institute criminal proceedings in relation
to his allegation of ill-treatment. The applicant had been
represented by a lawyer at the pre-trial stage of the proceedings and
thus should have applied for judicial review. His raising this matter
before the trial court had been irrelevant since he had only sought
the exclusion of his confession statement.
2. The applicant
- The
applicant argued that the national authorities and the respondent
Government had failed to provide a plausible explanation for his
injuries. The authorities had not specified the details of the
applicant’s alleged resistance to the police during the arrest
or the exact sequence of events and the nature of the force used
against him. Nor had they compared the nature and location of the
injuries with the force used. In any event, the applicant had not
complained about the arresting officer’s actions. Officer G.
and investigator M. should have noticed injuries on the applicant’s
face and wrist.
- The
inquiry into the complaint of ill-treatment had not been thorough.
The authorities had not taken any note of the details provided by the
applicant (see paragraphs 13 and 14 above). Nor had they ordered a
confrontation with or an identification parade to identify any
officer. They had not carried out a search of the office in the
police station where the applicant was interviewed, or an inspection
of the place where the arrest was effected. Nor had they looked for a
gas mask, a hammer or the damaged handcuffs. No investigative
measures had been taken to remove inconsistencies between the
testimony of the applicant and that of investigator M. and the
arresting officers. Despite the immediate complaint of ill-treatment
and reiterated requests for a forensic medical examination, such an
examination had been carried out only one month after the events so
that certain injuries had healed or left no further traces. The
applicant and his counsel had not been afforded an opportunity to
suggest questions to be raised before the medical expert. The inquiry
could not have been independent since the officials of the
prosecutor’s office had had the double task of prosecuting the
applicant and supervising other public authorities. The applicant had
obtained a copy of the refusal to institute criminal proceedings
after a substantial delay and had not been given any subsequent
related decisions.
B. The Court’s assessment
1. Admissibility
- The
Government argued that the applicant should have sought judicial
review of the refusal to institute criminal proceedings issued on
29 December 2001.
- The Court reiterates that the purpose of Article 35 of
the Convention is to afford the Contracting States the opportunity of
preventing or putting right the violations alleged against them
before those allegations are submitted to it (see Civet v.
France [GC], no. 29340/95, § 41, ECHR 1999-VI). Whereas
Article 35 § 1 of the Convention must be applied with some
degree of flexibility and without excessive formalism, it does not
require merely that applications should be made to the appropriate
domestic courts and that use should be made of effective remedies
designed to challenge the decisions already given. It normally also
requires that the complaints intended to be brought subsequently
before the Court should have been made to those same courts, at least
in substance and in compliance with the formal requirements and
time-limits laid down in domestic law (see, among other authorities,
Cardot v. France, 19 March 1991, § 34, Series A no. 200).
- The
Court considers that the question of exhaustion of domestic remedies
is closely linked to the merits of the applicant’s complaint
concerning the procedural aspect of Article 3 of the Convention (see,
for a similar approach, Samoylov v. Russia, no. 64398/01, §
27, 2 October 2008, and paragraphs 66-68 below).
- 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.
2. Merits
(a) Alleged ill-treatment
(i) General principles
- The Court reiterates that Article 3 of the Convention
prohibits in absolute terms torture and inhuman or degrading
treatment or punishment. In order to fall within the scope of Article
3, the ill-treatment must attain a minimum level of severity, the
assessment of which depends on all the circumstances of the case,
such as the duration of the treatment, its physical or mental effects
and, in some cases, the sex, age and state of health of the victim
(see, among others, Ireland v. the United Kingdom, 18 January
1978, § 162, Series A no. 25).
- In assessing evidence, the Court has generally applied
the standard of proof “beyond reasonable doubt”. However,
such proof may follow from the coexistence of sufficiently strong,
clear and concordant inferences or of similar unrebutted presumptions
of fact. Where the events in issue lie wholly, or in large part,
within the exclusive knowledge of the authorities, as in the case of
persons within their control in custody, strong presumptions of fact
will arise in respect of injuries occurring during such detention.
Indeed, the burden of proof may be regarded as resting on the
authorities to provide a satisfactory and convincing explanation (see
Zelilof v. Greece, no. 17060/03, § 44, 24 May
2007, and Polyakov v. Russia, no. 77018/01, §§
25 and 26, 29 January 2009).
- The Court also reiterates that 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 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.
- In
respect of a person deprived of his liberty, any 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 of the Convention (see Sheydayev
v. Russia, no. 65859/01, § 59, 7 December 2006;
Ribitsch v. Austria, 4 December 1995, § 38, Series A no.
336; and Krastanov v. Bulgaria, no. 50222/99, § 53,
30 September 2004).
(ii) Application of the principles in the
present case
- It
is undisputed that on 6 November 2001 the applicant sustained
injuries to his face, chest, ribs and wrist. In the Court’s
view, those injuries were sufficiently serious to reach the “minimum
level of severity” under Article 3 of the Convention. It
remains to be considered whether the State should be held
responsible under Article 3 for the injuries.
- The
applicant alleged at the domestic level and before the Court that at
the police station he had been handcuffed to a chair, punched and
kicked, and that an officer had put a gas mask on him and blocked the
air vent (see paragraph 14 above). According to the national
authorities and the Government, these injuries stemmed from the time
of the applicant’s arrest and were not inflicted during his
subsequent stay in the police station.
- The
Court observes that on 6 November 2001 the applicant attempted to run
away from the police and that he was apprehended soon thereafter. It
must be accepted that the national authorities’ task was
rendered more difficult in such circumstances. The domestic findings
indicate that on perceiving a physical threat from the applicant a
police officer had to inflict a blow to the applicant’s chest
and to use martial arts. The applicant fell to the ground; handcuffs
were used on him. The domestic findings also indicate that the
applicant fell into the opening of a water drainage system.
- In
the applicant’s submission, having heard a warning shot, he lay
down on the ground and did not resist any further actions from the
police. At the same time, the applicant did not seriously dispute the
circumstances relating to his arrest. Nor did he complain about the
use of force against him at that time. Although the Court was not
provided with a copy of any reports which may have been made by the
officers to their superiors in that connection, the applicant made no
specific comment before this Court concerning the arresting officer’s
use of force against him. The Court finds it plausible that the
injuries which were subsequently recorded (see paragraphs 11 and 12
above) were sustained during the arrest. The Court does not have
sufficient reasons to disagree with the domestic assessment. Thus, it
may be accepted that the final stage of the arrest was carried out in
a way which did not offend the requirements of Article 3 of the
Convention.
- Moreover, the Court considers that there are
insufficient elements in support of the applicant’s allegation
that he was subjected to inhuman or degrading treatment after his
arrest. Thus, it has not been established that any inhuman or
degrading treatment was inflicted on the applicant in the police
station.
- For
these reasons, the Court concludes that no violation of Article 3 of
the Convention has been established in relation to the injuries
sustained by the applicant on 6 November 2001.
(b) Alleged inadequacy of the
investigation
- The
Court reiterates that where an individual raises a credible claim
that he has been seriously ill-treated by agents of the State in
breach of Article 3, there should be a thorough and effective
investigation (see, among others, Assenov and Others v. Bulgaria,
28 October 1998, § 102, Reports of Judgments and Decisions
1998 VIII, and Gäfgen v. Germany [GC], no. 22978/05,
§ 117, ECHR 2010).
- Such
an investigation 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).
- The
investigation into credible allegations of ill-treatment must be
thorough. That means that the authorities must 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 eyewitness
testimony and forensic evidence (see Tanrıkulu v. Turkey
[GC], no. 23763/94, § 104 et seq., ECHR 1999-IV, and Gül
v. Turkey, no. 22676/93, § 89, 14 December 2000). Also,
the Court has often assessed whether the authorities have reacted
promptly to the complaints at the relevant time, consideration being
given to the date of commencement of investigations, delays in taking
statements and the length of time taken to complete the investigation
(see Labita v. Italy [GC], no. 26772/95, § 133
et seq., ECHR 2000 IV, and Indelicato v. Italy,
no. 31143/96, § 37, 18 October 2001). Furthermore, the
Court reiterates its finding made on a number of occasions that the
“investigation” in terms of Article 2 or 3 of the
Convention should be carried out by competent, qualified and
impartial experts who are independent of the suspected perpetrators
and the agency they serve (see Oğur v. Turkey [GC],
no. 21594/93, §§ 91 and 92, ECHR 1999-III, and
Ramsahai and Others v. the Netherlands [GC], no. 52391/99,
§ 325, ECHR 2007 II). 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 the
applicable standard.
- Turning
to the present case, the Court first observes that the applicant’s
injuries and his allegations against State agents were sufficiently
serious and credible to require some form of investigation on the
part of the national authorities.
- In the Court’s view, having been alerted at the
latest by 7 November 2001 to the presence of injuries on the
applicant’s body and having learnt that they had probably been
sustained and/or inflicted during and/or after his arrest, it was
incumbent on the national authorities to verify that no proscribed
treatment had been inflicted on him. However, the respondent
Government has not indicated the exact date on which an inquiry was
launched.
- In
that connection, it should also be noted that the applicant’s
counsel twice, on 7 and 8 November 2001, insisted that the applicant
should be subjected, without any further delay, to an examination by
a medical expert. However, it does not appear that any investigative
measures in relation to the alleged ill-treatment were carried out
until 4 December 2001. On that date an investigator commissioned a
medical report.
- Regarding
this report, first, it has not been convincingly shown that the
investigator in question was entirely unrelated to the Kryukovo
police station to which the officer accused by the applicant of
ill-treatment was assigned. On a more general level, the Court
observes that at least two investigators and two assistants to public
prosecutors were involved in the preliminary inquiry which resulted
in the decision not to institute criminal proceedings against any
public officials. It appears that investigator M. was in charge of
the criminal case against the applicant at least at the initial stage
of the proceedings (see paragraphs 8, 9, 13 and 15 above). At the
same time, he worked in direct contact with officer G. and also
interviewed the applicant in relation to his allegation of
ill-treatment. Moreover, it is unclear which of the above or other
officials carried out the interviews in the inquiry. The Court has
doubts as to whether the “investigation” within the
meaning of Article 3 of the Convention was carried out in the present
case by officials or authorities who were both impartial and
independent of the suspected perpetrators and the agency they served.
- As
regards the quality of the expert examination carried out
from
4-6 December 2001, the Court reiterates that proper medical
examinations are an essential safeguard against ill-treatment (see
Akkoç v. Turkey, nos. 22947/93 and 22948/93, §§ 55
and 118, ECHR 2000-X, and numerous cases concerning Russia, for
instance, Maksimov v. Russia, no. 43233/02, § 88,
18 March 2010). In the present case, as noted by the applicant and
the expert herself, the medical expert examination took place one
month after the events and the medical record which was made
available to the expert had insufficient information about the
morphological characteristics of the injuries, such as quantity,
form, size, and exact anatomic location. Thus, it was impracticable
for the expert to provide adequate answers to the questions raised by
the requesting authority. The previously recorded bodily injuries had
no forensic qualification and their gravity could not be determined
(see paragraph 16 above). While before this expert examination the
applicant had been examined in a clinic and a hospital, the nature,
purpose and scope of these earlier examinations were not such as to
remedy the shortcomings arising from the belated recourse to a
forensic expert in the present case.
- Moreover, while the applicant’s counsel and
emergency doctors noted injuries, investigator M., officer G. and the
clinic did not notice any. The domestic inquiry did not contain any
comparative assessment of these apparently contradictory accounts.
Nor did the authorities arrange for an identification parade or a
confrontation between the applicant and officer G.
- As to judicial review of a refusal to institute
criminal proceedings, the Court reiterates that in the ordinary
course of events such proceedings could be regarded as a possible
remedy where the authorities have decided not to investigate the
claims (see Samoylov, cited above, § 40). However, the
Government have not contested that the refusal of 29 December 2001
was received by the defence at the beginning of the trial. It is
noted that a court could not, in separate judicial review
proceedings, prejudge matters relating to the scope of a criminal
trial in the main case (see paragraph 37 above). Indeed, the matter
of ill-treatment had received some attention on the part of the trial
and appeal courts in the applicant’s own criminal case before
it was raised before this Court (see paragraph 26 above). Second,
by the time the defence obtained a copy of the decision of 29
December 2001 counsel had already brought proceedings in which
certain matters relating to the alleged ill-treatment were raised
(see paragraphs 23 and 30 above).
- Lastly,
referring to the destruction of the inquiry file due to the expiry of
the period for retention on an unspecified date, the Government
submitted that a new refusal to prosecute had been issued in February
2002. In the absence of any indication to the contrary, the Court is
prepared to assume that this new refusal replaced the refusal issued
on 29 December 2001.
- In such circumstances, the Court accepts that the
present complaint cannot be rejected on account of the applicant’s
failure to seek judicial review in respect of the latter refusal
(see, for comparison, Medvedev v. Russia, no. 9487/02, §§
41-43, 15 July 2010). Thus, the Government’s argument
concerning non-exhaustion of domestic remedies should be dismissed in
the circumstances of this case. Having reached this conclusion, the
Court also considers that the domestic courts in the present case did
not remedy any shortcomings in the preliminary inquiry carried out in
relation to the allegation of ill-treatment.
- For
the reasons stated in paragraphs 61-65 above, the Court concludes
that the investigation into the complaint of ill-treatment did not
comply with the requirements of Article 3 of the Convention. There
has therefore been a violation of that provision.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained that he had not been able
to obtain a copy of the appeal judgment of 13 August 2002 in his
criminal case. The Court will examine this complaint under Article 6
§ 1 of the Convention, which reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
- The
Government made no comment as regards the alleged unavailability of
the copy of the appeal decision. Instead, the Government argued with
reference to the text of the appeal judgment that the applicant and
his two lawyers had been present at the appeal hearing. Had it been
otherwise, the applicant could have referred in his application for
supervisory review to the violation of his defence rights in the
appeal proceedings.
- The
applicant maintained his complaint, noting the Government’s
omission to comment on the unavailability of the appeal decision. He
subsequently added that the respondent Government had not furnished
documentary proof of any proper notification or of the defence’s
presence at the appeal hearing.
- As
to access to the appeal decision, it follows from the defence’s
submissions to the supervisory-review court that the defence was
aware of the contents of the appeal decision (see paragraph 32
above). Indeed, it does not appear that the matter at the heart of
the present complaint was aired in the supervisory-review
proceedings, which resulted in a partially favourable outcome for the
applicant. Thus, it has not been substantiated that the defence did
not obtain a copy of the appeal decision.
- Furthermore,
the Court observes that it has not been expressly argued that the
applicant and/or his counsel were not notified of the appeal hearing
and were not present at it. Instead, the main thrust of the
applicant’s reasoning related to the Government’s
omission to submit any documentary proof. However, it transpires that
the defence were made aware of the appeal hearing and participated in
it (see paragraph 29 above).
- 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.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant complained about the conditions of detention in the
temporary detention centre, about his arrest and detention in January
2002, and of certain other violations of his rights in the criminal
proceedings against him.
- The
Court has examined these complaints as submitted by the applicant.
However, in the light of all the material in its possession, and in
so far as the matters complained of are within its competence, it
finds that they do not disclose any appearance of a violation of the
rights and freedoms set out in the Convention or its Protocols. It
follows that this part of the application 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 20,000 euros (EUR) in respect
of non-pecuniary damage in relation to the alleged ill-treatment and
EUR 19,400 in relation to the other alleged violations of the
Convention.
- The
Government contested the first sum as excessive and the second sum as
unrelated to the subject-matter of the present application.
- The
Court has found a violation of Article 3 of the Convention as regards
its procedural aspect. Thus, the second part of the applicant’s
claims should be dismissed as unrelated to this finding. Bearing in
mind the nature of the violation and making an assessment on an
equitable basis, the Court awards the applicant EUR 10,000, plus any
tax that may be chargeable, in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant made no claim and thus no award is
required.
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 complaint concerning the alleged
ill-treatment and ineffective investigation 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 of the date on which the judgment
becomes final in accordance with Article 44 § 2
of the Convention, EUR 10,000 (ten thousand euros), plus
any tax that may be chargeable, in respect of non-pecuniary damage,
to be converted into Russian roubles at the rate applicable on the
date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 13 March 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
