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FIRST
SECTION
CASE OF ALCHAGIN v. RUSSIA
(Application
no. 20212/05)
JUDGMENT
STRASBOURG
17
January 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 Alchagin v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Peer Lorenzen,
Mirjana
Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre
Sicilianos,
Erik Møse, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 13 December 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 20212/05)
against the Russian Federation lodged with the Court
under Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”) by a
Russian national, Mr Vladimir Nikolayevich Alchagin (“the
applicant”), on 12 May 2005.
- The Russian Government (“the Government”)
were represented by Mr G. Matyushkin, the Representative of
the Russian Federation at the European Court of Human Rights.
- The
applicant alleged that he had been ill-treated while in State custody
and that the domestic authorities had failed to investigate the
matter. He further alleged that his conviction had been based on a
self incriminating statement he made under duress.
- On
8 April 2009 the President of the First Section decided to give
notice of the above application to the Government. It was also
decided (pursuant to former Article 29 § 3 of the
Convention) to rule on the admissibility and merits of the
application at the same time.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1973 and lives in Biysk,
the Altay Region.
A. Applicant’s arrest and alleged ill-treatment
at the police station
- On 13 October 2003 the applicant was arrested on
suspicion of theft and brought to the Priobskiy police station of the
Department of the Interior in Biysk (Территориальное
отделение
милиции
«Приобский»
Управления
внутренних
дел по
г. Бийску).
He was put in the station’s temporary detention facility (ИВС
УВД г.
Бийска).
- On 15 October 2003 at midnight the applicant was
examined by a medical auxiliary at the temporary detention facility.
No injuries were found on him.
- On
the same day the Priobskiy District Court of Biysk ordered that the
applicant be remanded in custody.
- On
21 October 2003 the applicant was charged with theft, and on
24 October 2003 he was transferred to Biysk remand prison
IZ-22/2 (учреждение
ИЗ-22/2 г.
Бийска
УФСИН
России
по Алтайскому
краю).
It appears that no injuries were found on the applicant on his
admission to the remand prison.
- According
to the applicant, from 13 October to 24 October 2003 the policemen of
the Priobskiy police station interrogated him about his suspected
involvement in an organised criminal group. The applicant alleged to
have been ill-treated by the policemen during the interrogations. He
contended that the policemen kicked him, used a gas mask to restrict
his air supply, and gave him electric shocks.
- As a result of the alleged intimidation the applicant
made a confession statement. The exact contents of the statement were
not made available to the Court. According to the Government the
applicant’s defence counsel was present when the applicant made
his confession statement. The applicant did not claim otherwise.
B. Investigation of the alleged ill-treatment
- On
22 October 2003 the applicant filed a complaint about ill treatment
to the Biysk City Prosecutor’s Office.
- Shortly
afterwards the assistant of the Biysk City Prosecutor ordered the
applicant’s forensic medical examination.
- On 5 November 2003 the applicant was examined by a
forensic medical expert (report no. 4918). The following injuries
were discovered on him: an abrasion in the left lumbar region
(measurements illegible on the copy of the report), a deep abrasion
on the right shin measuring 7 x 0.3 cm, a bruise on the internal
surface of the right knee joint measuring 3 x 4 cm, and a scar on the
upper lip mucous membrane measuring 2 cm. The expert concluded that
the injuries could have been caused by a blunt, hard object in the
period of time between 13 October and 16 October 2003, on
account of the nature of the abrasions and scars and the colour of
the bruise. The expert further indicated that the above injuries did
not cause harm to the applicant’s health.
- On 13 November 2003 investigator M. of the Biysk City
Prosecutor’s Office refused to institute criminal proceedings
against the policemen because there was no indication of a criminal
offence. The investigator’s decision was based on statements by
policemen Kh., Yar. and K., who submitted that the applicant had
agreed to go to the police station to be questioned on suspicion of
theft and that no force or intimidation had been used on him during
the interview, and statements by the investigator dealing with the
criminal case against the applicant who submitted that he had
questioned the applicant as a suspect in the presence of the
applicant’s defence counsel, that the applicant had been
subsequently released, that he had had no visible injuries on his
body and had not complained about any intimidation by policemen.
- On
11 May 2004 the Deputy Prosecutor of Biysk annulled the above
decision and ordered an additional inquiry into the applicant’s
complaints of ill-treatment. A copy of the above decision was not
made available to the Court.
- On 28 November 2004, following an additional inquiry
into the applicant’s allegations of ill-treatment, chief
investigator B. of the Biysk City Prosecutor’s Office refused
to institute criminal proceedings against the alleged perpetrators.
The decision was based on statements by investigators Kolp. and Gar.,
statements by police officers Sel., Yud., Petr., Prokh., Ser., Kh.,
Yar. and K., and a certificate attesting to the fact that from
15 October to 24 October 2003 the applicant was held in the
temporary detention facility, that he had had no injuries upon his
admission to the temporary detention facility on 15 October 2003
or later upon his admission to the remand prison on 24 October
2003.
- On
21 March 2005 the Deputy Prosecutor of the Altay Region upheld the
above-mentioned decision.
- The
applicant appealed against the decision of 28 November 2004 to the
court.
- On 30 November 2005 the Vostochniy District Court of
Biysk held that the decision of 28 November 2004 had been lawful and
substantiated. The court noted the following:
- Policemen
Sel., Yud., Petr., Prokh., Ser., Kh., Yar., K. and G. denied having
used physical force or intimidation against the applicant;
- Investigators
Kolp. and Gar. stated that no physical force had been applied to the
applicant during the investigation of the criminal case against him
and that no complaints in this respect had been made by the
applicant;
- According
to the certificate issued by the temporary detention facility the
applicant had been held at the police station from 15 October to
24 October 2003. He had no injuries on his body when he had
arrived at the police station.
- According
to the certificate issued by Biysk remand prison IZ-22/2 the
applicant had had no injuries when he arrived on 24 October 2003.
- According
to the finding of forensic medical examination no. 4918 of 5
November 2003 the applicant had had an abrasion in the left lumbar
region, a deep abrasion on the right shin, a bruise on the right knee
joint and a scar on the upper lip mucous membrane. The report noted
that the injuries could have been caused by a blunt, hard object in
the period of time between 13 October and 16 October 2003,
on account of the nature of the abrasions and scars and the colour of
the bruise. The injuries were not deemed harmful to the applicant’s
health.
The
court held that the fact that the applicant’s injuries had been
confirmed by a forensic medical examination could not serve as a
sufficient ground for instituting criminal proceedings against the
police officers, since “the expert examination only certified
the presence of bodily injuries and did not answer the question as to
who had caused those injuries to the applicant and under what
circumstances”.
- The applicant appealed to the Altay Regional Court. He
claimed that the refusal to open a criminal investigation had been
based exclusively on the statements by the police officers concerned
whereas no evidence had been taken from those who had been detained
with him and who could have confirmed his account of events. He
further insisted that his injuries were confirmed by the forensic
medical examination and two videotapes recorded by the police
officers in the course of gathering the evidence against him.
- On
19 January 2006 the Altay Regional Court upheld the decision of
30 November 2005 on appeal. The court noted that the decision of
30 November 2005 had been taken after careful examination and
assessment of statements by the individuals who were in a place to
know about the circumstances of the alleged beatings, the results of
a forensic medical examination, and relevant documents from the
temporary detention ward and the remand prison where the applicant
had been detained. The court further found that the failure to
question the applicant’s cellmates did not mean that the
decision of the investigator had been unlawful and unjustified, since
the above individuals had not witnessed the alleged beatings and
could not therefore have furnished any information about the
circumstances of the alleged events. The court went on to say that
the fact that the applicant’s injuries were confirmed by the
expert did not necessarily imply that the injuries had been caused as
a result of resort to physical violence by the police officers. No
alternative version, however, was put forward to explain the origin
of the applicant’s injuries.
C. Applicant’s trial
- On 11 November 2004 the Altay Regional Court, in a
jury trial, convicted the applicant of robbery and five counts of
theft, and sentenced him to thirteen years’ imprisonment. The
following evidence was examined by the jury: the statements by the
victims and the witnesses, the applicant’s confession statement
made at the pre-trial stage and his further confession statements
made at the trial, a statement by one of the applicant’s
co-defendants, reports of various examinations (forensic medical
examination, crime scene examination, trace examination), and records
of the seizure of the victims’ belongings.
- While
examining the issue of the admissibility of the applicant’s
confession statement made at the pre-trial stage, the trial court
questioned police officers Ser., Sel., Petr., Prokh. and Yud., who
denied having used any unlawful methods of investigation on the
applicant. It viewed the videotape of a conversation between the
applicant and a police officer (date unspecified) and pictures
(фототаблица)
taken on 21 October 2003 in the course of an investigative
procedure, in which no signs of visible injuries could be seen on the
applicant. The court further questioned the attesting witnesses who
had participated in various investigative procedures with the
applicant between 15 October and 13 November 2003 and had
not seen any visible injuries on him either. Finally, the court
refused the applicant’s request to obtain attendance and
question those who had been detained together with him at the
temporary detention facility.
- The
applicant appealed, claiming, inter alia, that the jury had
found him guilty on the basis of his confession statement, which had
been obtained under duress.
- On
10 February 2005 the Supreme Court of Russia upheld the conviction on
appeal.
- On
3 August 2005 the Presidium of the Supreme Court of Russia, by way of
supervisory review, modified the qualification of the crimes
committed by the applicant and reduced the sentence to twelve years’
imprisonment.
D. Inquiry into the applicant’s complaints of
ill-treatment following the communication of the application to the
Government
- After the application was communicated to the Russian
Government, in June 2009 the internal security department of the
Ministry of the Interior of the Altay Region (Управление
собственной
безопасности
ГУВД
по Алтайскому
краю)
was charged with a further inquiry into the applicant’s
allegations of ill-treatment.
- In the course of the inquiry information was received
about the possible infliction of the injuries in question prior to
the applicant’s arrest. Namely, on 28 September 2003 the
Priobskiy police station registered a complaint to the effect that on
that date at about 2 a.m. on Martjyanova Street in Biysk unidentified
persons caused injuries to Alchagin V. During the inquiry Alchagin V.
explained that on 28 September 2003, in a state of inebriation,
he had fallen over several times on his way home, thereby sustaining
bodily injuries. According to forensic medical examination report no.
4227 the injuries (multiple bruises to the face, head and body) were
possibly sustained on 28 September 2003 as a result of a fall
from his own height and did not cause harm to his health.
Subsequently, Alchagin V. asked for the inquiry to be discontinued.
For that reason, on 3 October 2003 a decision not to open a
criminal investigation into the matter was issued.
II. RELEVANT DOMESTIC LAW
A. Criminal Code
- Abuse of position associated with the use of violence
or entailing serious consequences carries a punishment of up to ten
years’ imprisonment (Article 286 § 3 of the Criminal
Code).
B. Code of Criminal Procedure
- The Russian Code of Criminal Procedure (Law no. 174-FZ
of 18 December 2001, in force from 1 July 2002, the “CCrP”)
states that a criminal investigation may be initiated by an
investigator or prosecutor on a complaint by an individual (Articles
140 and 146). Within three days of receipt of such a complaint the
investigator or prosecutor must carry out a preliminary inquiry and
make one of the following decisions: (1) to open criminal proceedings
if there are reasons to believe that a crime has been committed; (2)
to decline to open criminal proceedings if the inquiry reveals that
there are no grounds to initiate a criminal investigation; or (3) to
refer the complaint to the appropriate investigating authority. The
complainant must be notified of any decision taken. The decision not
to open criminal proceedings is amenable to appeal to a higher
prosecutor or a court of general jurisdiction (Articles 144, 145 and
148).
- The CCrP provides for judicial review of a decision or
(in)action on the part of an inquirer, investigator or prosecutor
which has affected constitutional rights or freedoms. The judge is
empowered to verify the lawfulness and reasonableness of the
decision/(in)action and to grant the following forms of relief: (1)
to declare the impugned decision/(in)action unlawful or unreasonable
and to order the respective authority to remedy the violation; or (2)
to reject the complaint (Article 125).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that he had been
ill-treated in police custody following his arrest and that his
complaints about ill-treatment were futile. The Court will examine
this complaint from the standpoint of the State’s negative and
positive obligations flowing from Article 3, which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
- The
Court considers that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention and
is not inadmissible on any other grounds. It must therefore be
declared admissible.
B. Merits
1. Submissions by the parties
- The
Government submitted that the applicant’s allegations of
ill treatment had been carefully checked by the domestic
authorities and had been reasonably found unsubstantiated. The
conclusions reached by the domestic authorities were confirmed by
relevant evidence which the applicant failed to refute. Referring to
the inquiry set up by the domestic authorities after the
communication of this complaint in 2009 (see paragraphs 28-29 above),
the Government put forward a version of the facts in which the
applicant sustained the injuries prior to his arrest as a result of
several falls from his own height. The Government summed up that
there had therefore been no violation of either the substantive or
the procedural aspect of Article 3 of the Convention.
- The applicant submitted that, as it follows from the
results of his forensic medical examination of 5 November 2003
(report no. 4918), the injuries discovered on him were caused by a
blunt, hard object in the period of time between 13 October and
16 October 2003, and not earlier as supposed by the Government.
He further noted that the documents relied on by the Government in
support of the argument that the injuries had been caused to him
prior to his arrest did not in fact concern him, but his brother,
Vyacheslav Alchagin.
2. The Court’s assessment
(a) Alleged inadequacy of the
investigation
(i) General principles
- The
Court reiterates that where an individual raises an arguable claim
that he has been seriously ill-treated in breach of Article 3,
that provision, read in conjunction with the State’s general
duty under Article 1 of the Convention to “secure to
everyone within their jurisdiction the rights and freedoms defined in
... [the] Convention”, requires by implication that there
should be an effective official investigation (see Assenov and
Others v. Bulgaria, 28 October 1998, § 102,
Reports of Judgments and Decisions 1998 VIII).
- An obligation to investigate “is not an
obligation of result, but of means”: not every investigation
should necessarily be successful or come to a conclusion which
coincides with the claimant’s account of events; however, it
should in principle be capable of leading to the establishment of the
facts of the case and, if the allegations prove to be true, to the
identification and punishment of those responsible (see Paul and
Audrey Edwards v. the United Kingdom, no. 46477/99, § 71,
ECHR 2002-II; Mahmut Kaya v. Turkey, no. 22535/93, §
124, ECHR 2000-III; and Mikheyev v. Russia, no. 77617/01,
§ 107, 26 January 2006).
- The
investigation of arguable allegations of ill-treatment must be
thorough. That means that the authorities must always make a serious
attempt to find out what happened and should not rely on hasty or
ill founded conclusions to close their investigation or as the
basis of their decisions. They must take all reasonable steps
available to them to secure the evidence concerning the incident,
including, inter alia, a detailed statement concerning the
allegations from the alleged victim, eyewitness testimony, forensic
evidence and, where appropriate, additional medical certificates
capable of providing a full and accurate record of the injuries and
an objective analysis of the medical findings, in particular as
regards the cause of the injuries. Any deficiency in the
investigation which undermines its ability to establish the cause of
injuries or the identity of the persons responsible will risk falling
foul of this standard (see Mikheyev, cited above, § 108,
and Nadrosov v. Russia, no. 9297/02, § 38,
31 July 2008).
- The
investigation into the alleged ill-treatment must be prompt. There
must be a sufficient element of public scrutiny of the investigation
or its results; in particular, in all cases, the complainant must be
afforded effective access to the investigatory procedure (see
Mikheyev, cited above, § 109; Maksimov v. Russia,
no. 43233/02, § 83, 18 March 2010; and Lopata
v. Russia, no. 72250/01, § 110, 13 July
2010).
- Finally,
the investigation into alleged ill-treatment by State agents should
be independent (see Öğur v. Turkey, [GC],
no. 21954/93, ECHR 1999-III, §§ 91-92; Mehmet Emin
Yüksel v. Turkey, no. 40154/98, § 37, 20 July
2004; Menesheva v. Russia, no. 59261/00, § 67,
ECHR 2006 III; and Oleg Nikitin v. Russia, no. 36410/02,
§ 35, 9 October 2008).
(ii) Application of the above principles
in the present case
- Turning
to the circumstances of the present case, the Court observes that on
22 October 2003 the applicant submitted to the Biysk City
Prosecutor’s Office a complaint to the effect that as from his
arrest on 13 October 2003 he had been subjected to
ill-treatment on several occasions by police officers of the Biysk
Priobskiy police station and had sustained bodily injuries (see
paragraph 11 above). The existence of the applicant’s injuries
was confirmed by a forensic medical examination report of 5 November
2003, which established that the injuries in question (two abrasions,
a bruise and a scar) could have been sustained between 13 October
and 16 October 2003 as a result of the impact of a blunt, hard
object (see paragraph 14 above). The applicant’s claim,
therefore, revealed itself to be “arguable”, and the
domestic authorities were placed under an obligation to carry out “a
thorough and effective investigation capable of leading to the
identification and punishment of those responsible”.
- In
this connection the Court notes that the prosecution authorities, who
were made aware of the applicant’s ill-treatment, carried out a
preliminary investigation which did not result in criminal
prosecution. The applicant’s ill-treatment complaints were also
the subject of examination by the domestic courts at two levels of
jurisdiction. In the Court’s opinion, the issue is consequently
not so much whether there was an investigation, since the parties did
not dispute that there was one, but whether it was conducted
diligently, whether the authorities were determined to identify and
prosecute those responsible and, accordingly, whether the
investigation was effective. The Court will therefore assess the
thoroughness of the investigation.
- The
Court observes that on 13 November 2003
and 28 November 2004 the Prosecutor’s Office decided to
refuse the criminal investigation into the applicant’s
allegations. The first decision was based exclusively on statements
by police officers and an investigator (see paragraph 15 above). The
second decision further relied on a certificate attesting to
the fact that the applicant had had no injuries on his admission to
the temporary detention facility on 15 October 2003 and
subsequently on his admission to the remand prison on 24 October
2003 (see paragraph 17 above). The Court finds
it striking that regardless of the availability of the forensic
medical report drawn up on 5 November 2003 at the request of the
investigating authorities, it was never mentioned in the decisions
refusing to open a criminal investigation against the police
officers.
- The
Court further observes that it was not until the examination of the
applicant’s complaint by the district court in November 2005,
that is, over two years after the alleged ill-treatment, that the
existence of the above-mentioned report – confirming the
applicant’s injuries and their infliction in the time frame
under consideration – was taken into account by the domestic
authorities (see paragraph 20 above). Yet even then this evidence was
not attributed any weight since “the expert examination
only certified the presence of bodily injuries and did not answer the
question as to who had caused those injuries to the applicant and
under what circumstances”. Thus, the Court notes that the
domestic court expected the forensic medical examination not only to
detect the injuries, define their nature and determine the possible
time and mechanism of their infliction, but furthermore to fulfil the
task of the investigating authorities and the court itself in
providing the answers to the questions as to who had caused the
injuries to the applicant and under what circumstances.
- Besides
the disregard of the medical evidence, the Court is concerned
at the lack of any effort on behalf of the domestic authorities –
either the investigating authorities or the court – to obtain
any evidence from any other sources other than the police officers
and the investigators. In particular, throughout the proceedings the
applicant insisted that the persons who had been detained together
with him at the temporary detention facility be questioned as they
had seen his state when he had been leaving the cell for
interrogations and when he had been taken back (see paragraphs 21 and
23 above). However, the domestic court refused the applicant’s
requests, citing as a reason the fact that the persons whose
attendance the applicant sought to obtain had not witnessed the
alleged beatings and, therefore, could provide no information as to
the circumstances of the case.
- Lastly,
the Court notes that the domestic authorities took no steps to
eliminate the discrepancies in the evidence. In particular, it
remained unexplained how the applicant was found to have no injuries
at the moment of his admission to the remand prison on 24 October
2003 but was subsequently, on 5 November 2003, observed as having a
number of injuries dating between 13 October and 16 October
2003 (see paragraphs 14, 17 and 20 above).
- Having
regard to the foregoing, the Court does not consider that the
authorities have conducted an effective investigation into the
applicant’s allegations of ill-treatment and holds that there
has been a violation of Article 3 of the Convention under its
procedural limb.
(b) Alleged ill-treatment of the applicant
(i) General principles
- The Court reiterates that persons in custody are in a
vulnerable position and that the authorities are under a duty to
protect their physical well-being (see Gladyshev v. Russia,
no. 2807/04, § 51, 30 July 2009; Sarban v.
Moldova, no. 3456/05, § 77, 4 October 2005;
and Mouisel v. France, no. 67263/01, § 40,
ECHR 2002-IX). 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 Ribitsch v. Austria, 4 December 1995, § 38,
Series A no. 336; Krastanov v. Bulgaria,
no. 50222/99, § 53, 30 September 2004; and
Sheydayev v. Russia, no. 65859/01, § 59,
7 December 2006).
- The Court further reiterates that to fall under
Article 3 of the Convention ill-treatment must attain a minimum level
of severity. The standard of proof relied upon by the Court is that
“beyond reasonable doubt” (see Avşar v. Turkey,
no. 25657/94, § 282, ECHR 2001-VII). 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 Gladyshev,
cited above, § 52; Oleg Nikitin, cited above,
§ 45; 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). The Court must apply a particularly thorough scrutiny where
the applicant raises an arguable complaint of ill-treatment (see
Ribitsch, cited above, § 32, and Avşar,
cited above, § 283).
(ii) Application of the above principles
in the present case
- Turning
to the circumstances of the instant case, the Court notes that
following his arrest on 13 October 2003 the applicant was
detained in the temporary detention facility at the Biysk Priobskiy
police station (see paragraph 6 above). He was examined by a medical
auxiliary and observed as having no injuries (see 7 above). Shortly
after the applicant lodged his complaint of ill-treatment with the
Prosecutor’s Office on 22 October 2003 and underwent a
forensic medical examination. The report of this examination of
5 November 2003 recorded an abrasion of the applicant’s
left lumbar region, a deep abrasion on the right shin, a bruise on
the internal surface of the right knee joint and a scar on the upper
lip mucous membrane. The expert concluded that the injuries, which
caused no damage to the applicant’s health, could have been
caused by a blunt, hard object in the period of time between
13 October and 16 October 2003 (see paragraph 14 above).
The validity of the above report was not disputed by the parties.
- The
Court considers that the above-mentioned medical evidence, along with
the fact that the alleged beatings took place while the applicant was
under the authorities’ control in custody, created an
unrebutted presumption of fact that the applicant was subjected to
ill-treatment at the hands of State agents and required the
Government to provide a satisfactory and convincing explanation as to
how those injuries could have been caused.
- In
this connection the Court notes, first of all, that no effort to
provide such an explanation was made by the domestic authorities when
the issue of the applicant’s alleged ill-treatment was
addressed by them between 2003 and 2006.
- The
Court further notes that following the communication of the
application to the respondent Government, in June 2009 the domestic
authorities launched an additional inquiry, in the course of which
they submitted that the applicant’s injuries had been inflicted
on 28 September 2003, that is, prior to his arrest, as a result
of a fall from his own height. They furnished relevant documents
which supposedly supported that account (see paragraphs 28 and 29
above). The Court observes, however, that, as quite rightly pointed
out by the applicant (see paragraph 36 above), the documents in
question do not in fact concern the applicant, Vladimir Alchagin, but
his brother, Vyacheslav Alchagin, and are, therefore, irrelevant to
the present case.
56. On
the basis of all the material placed before it, the Court finds,
therefore, that neither the authorities at the domestic level nor the
Government in the proceedings before the Strasbourg Court have
advanced any convincing explanation as to the origin of the
applicant’s injuries (see, by contrast, Klaas,
cited above, §§ 29-31).
The Court concludes therefore that the Government have not
satisfactorily established that the applicant’s injuries were
caused otherwise than – entirely, mainly, or partly – by
the treatment he underwent while in police custody (see Ribitsch,
cited above, § 34).
- Accordingly, having regard to the nature and the
extent of the applicant’s injuries, the Court concludes that
the State is responsible under the substantive limb of Article 3 on
account of the inhuman and degrading treatment to which the applicant
was subjected between 13 October and 24 October 2003 by
police officers of the Biysk Priobskiy police station.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION ON
ACCOUNT OF USE OF EVIDENCE OBTAINED UNDER DURESS
- The
applicant complained that his right to a fair
trial had been infringed by the use at his trial of his confession
statements obtained under duress. The Court will examine this
complaint under Article 6 §§ 1 and 3 (c), which,
in so far as relevant, provides:
“1. In the determination of ... any criminal
charge against him, everyone is entitled to a fair ... hearing ... by
[a] ... tribunal ...
...
3. Everyone charged with a criminal offence has the
following minimum rights:
...
(c) to defend himself in person or through legal
assistance of his own choosing or, if he has not sufficient means to
pay for legal assistance, to be given it free when the interests of
justice so require ...”
A. Admissibility
- The
Court considers that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention and
is not inadmissible on any other grounds. It must therefore be
declared admissible.
B. Merits
1. Submissions by the parties
- The Government submitted that the applicant’s
confession statement had not been the only evidence against the
applicant; his guilt in having committed each criminal offence was
corroborated by other items of evidence, among which the applicant’s
confession statements made at the trial, statements by victims and
witnesses, statements by one of the applicant’s co-defendants,
and records of various examinations. The confession statement was
made by the applicant in the presence of the defence counsel selected
by the applicant himself, which excluded the possibility of any
alleged coercion. Being represented by defence counsel throughout the
proceedings, the applicant had had ample opportunity to take part in
the examination of the evidence, to request the court to declare his
confession statement inadmissible as evidence, and to defend his
rights in any other lawful way. Furthermore, although he had been
informed about his right not to testify against himself, during the
jury trial the applicant had pleaded guilty to the crimes of which he
was subsequently convicted. Overall, the trial had been compatible
with the fairness requirement of Article 6.
- The
applicant made no submissions regarding this issue.
2. The Court’s assessment
(i) General principles
- The
Court reiterates that its duty under Article 19 of the
Convention is to ensure the observance of the engagements undertaken
by the Contracting States to the Convention. In particular, it is not
its function to deal with errors of fact or of law allegedly
committed by a national court unless and in so far as they may have
infringed rights and freedoms protected by the Convention. While
Article 6 guarantees the right to a fair hearing, it does not lay
down any rules on the admissibility of evidence as such, which is
primarily a matter for regulation under national law (see Jalloh
v. Germany [GC], no. 54810/00, § 94, ECHR 2006 IX;
Schenk v. Switzerland, 12 July 1988, §§ 45-46,
Series A no. 140; and Teixeira de Castro v. Portugal, 9 June
1998, § 34, Reports 1998-IV).
- It
is therefore not the role of the Court to determine, as a matter of
principle, whether particular types of evidence – for example,
evidence obtained unlawfully in terms of domestic law – may be
admissible or, indeed, whether the applicant was guilty or not. The
question which must be answered is whether the proceedings as a
whole, including the way in which the evidence was obtained, were
fair (see Jalloh, cited above, § 95; Khan v. the
United Kingdom, no. 35394/97, § 34, ECHR 2000-V;
P.G. and J.H. v. the United Kingdom, no. 44787/98, § 76,
ECHR 2001-IX; and Allan v. the United Kingdom,
no. 48539/99, § 42, ECHR 2002-IX).
- In
determining whether the proceedings as a whole were fair, regard must
be had to whether the rights of the defence have been respected.
It must be examined in particular whether the applicant was
given the opportunity of challenging the authenticity of the evidence
and of opposing its use. In addition, the quality of the evidence
must be taken into consideration, including whether the circumstances
in which it was obtained cast doubts on its reliability or accuracy.
Indeed, where the reliability of evidence is in dispute the existence
of fair procedures to examine the admissibility of the evidence takes
on an even greater importance (see Allan, cited above, §§ 43
and 47).
- The
use of evidence obtained by a measure found to be in breach of
Article 3 of the Convention always raises serious issues as to the
fairness of the proceedings even if the admission of such evidence
was not decisive in securing the conviction (see İçöz
v. Turkey (dec.), no. 54919/00, 9 January 2003; Jalloh,
cited above, §§ 99 and 104; Göçmen v.
Turkey, no. 72000/01, § 73, 17 October 2006; and
Harutyunyan v. Armenia, no. 36549/03, § 63,
ECHR 2007-VIII).
- While
having regard to the interests at stake in the context of Article 6,
the Court cannot but take note of the fact that Article 3 of the
Convention enshrines an absolute right. Being absolute, there can be
no weighing of other interests against it, such as the seriousness of
the offence under investigation or the public interest in effective
criminal prosecution, for to do so would undermine its absolute
nature. The securing of a criminal conviction may not be obtained at
the cost of compromising the protection of the absolute right not to
be subjected to ill-treatment proscribed by Article 3, as this
would sacrifice those values and discredit the administration of
justice (Gäfgen v. Germany [GC], no. 22978/05,
§ 176, ECHR 2010).
(ii) Application of the those principles
in the present case
- The
Court will determine whether in the light of the above principles the
criminal proceedings against the applicant can be considered fair.
- The
Court notes that it has previously found a violation of Article 6
of the Convention with respect to similar complaints, having taken
into consideration the following elements: (a) the proven
fact of ill-treatment (intentional or not, acknowledged domestically
or found in the proceedings before the Court) resulting in
self-incrimination; (b) the deficiency in legal
representation at the moment when the applicant made confession
statement (absence of counsel, inefficient counsel, waiver of the
right to be represented); (c) the use of such confession
statement to secure the applicant’s conviction (regardless of
whether the confession statement was corroborated by other evidence
or not and regardless of the impact such statement had on the outcome
of the criminal proceedings); (d) the deficiency of
safeguards in the procedure for challenging the admissibility and use
of confession statement (see, inter alia, Harutyunyan,
cited above, §§ 58-67; Yaremenko v. Ukraine,
no. 32092/02, §§ 74-81, 12 June 2008; Pavlenko
v. Russia, no. 42371/02, §§ 97-120,
1 April 2010; Lopata, cited above, §§ 130-146;
and Shishkin v. Russia, no. 18280/04, §§ 148-152,
7 July 2011).
- In
the instant case the Court found it established that between
13 October and 24 October 2003 while in police custody the
applicant was subjected to inhuman and degrading treatment contrary
to the substantive provisions of Article 3 (see paragraph 57 above).
The applicant claimed that as a result of the above treatment he had
made a confession statement. The Government did not claim otherwise.
- The
Court notes that, according to the Government, at the moment when the
applicant made his confession statement, he enjoyed the benefit of
legal advice by defence counsel of his own choice (see paragraphs 11
and 60 above). The applicant did not contest that assertion.
- The
Court further notes that the parties did not dispute that the
domestic court used the applicant’s confession statement for
securing his conviction. The Government claimed, however, that the
above statement had been cumulative to other extensive evidence
against the applicant, including his own statements made during the
jury trial. The applicant did not deny that during the jury trial he
had indeed pleaded guilty in having committed the crimes of which he
had been subsequently convicted.
- The
Court finally observes that the applicant was duly represented
throughout the proceedings and was, therefore, afforded ample
opportunity, which he took, to challenge before the domestic court
the admissibility and use of the evidence obtained under pressure.
- Having
regard to the foregoing, and, in particular, the applicant’s
own confession during the trial itself, the Court is unable to
conclude, in the circumstances of this particular case, that the use
of the applicant’s confession statement made at the pre-trial
stage rendered the proceedings against him wholly unfair.
- The
Court finds accordingly that there has been no violation of Article 6
of the Convention.
III. 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 25,000 euros (EUR) in respect
of non-pecuniary damage.
- The
Government submitted that if the Court were to find a violation, the
finding of such a violation would constitute in itself sufficient
just satisfaction.
- The
Court notes that it has found a violation under both the substantive
and procedural heads of Article 3 of the Convention on account of the
applicant’s ill-treatment whilst in State custody and the
failure to carry out an effective investigation into the matter. In
these circumstances, the Court considers that the suffering and
frustration caused to the applicant cannot be compensated for by a
mere finding of a violation. Making its assessment on an equitable
basis, the Court awards the applicant EUR 18,000 in respect
of non-pecuniary damage, plus any tax that may be chargeable on it.
B. Costs and expenses
- The applicant did not claim costs and expenses.
Accordingly, there is no call to make an award under this head.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
3 of the Convention under its substantive and procedural limbs on
account of the applicant’s ill-treatment between 13 October
and 24 October 2003;
- Holds that there has been no violation of
Article 6 of the Convention on account of use of evidence obtained
under duress;
- 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 18,000
(eighteen 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 at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points.
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 17 January 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
