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FIRST
SECTION
CASE OF KLEYN AND ALEKSANDROVICH v. RUSSIA
(Application
no. 40657/04)
JUDGMENT
STRASBOURG
3 May 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
Kleyn and Aleksandrovich 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 10 April 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 40657/04) 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 two Russian nationals, Mr Aleksandr
Nikolayevich Kleyn and Mr Roman Aleksandrovich (“the
applicants”), on 29 September 2004 and 12 August 2005
respectively.
- The
applicants were represented by the European Roma Rights Centre, an
international public-interest law organisation located in Budapest,
Hungary, and Ms O. Tseytlina, a lawyer practising in
St Petersburg. The Russian Government (“the Government”)
were represented by Ms V. Milinchuk, former Representative of the
Russian Federation at the European Court of Human Rights.
- The
applicants alleged, in particular, that Ms Aleksandrovich died as a
result of intentional mistreatment in police custody and that the
Russian authorities had failed to investigate the circumstances
surrounding her death.
- On
13 November 2007 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 of the
Convention).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
first applicant, born in 1981, is the widower of the late Ms Fatsima
Aleksandrovich, a Belarus national of Roma ethnicity, who was born in
1979 and died in 2002. The second applicant is her son, born in 2000.
The applicants are Russian nationals living in the Pskov Region.
A. Ms Aleksandrovich’s arrest and death
- The
applicants provided the following account of the circumstances
surrounding Ms Aleksandrovich’s arrest and death which was not
disputed by the Government.
- At
8.30 a.m. on 20 May 2002 Ms Aleksandrovich was travelling on a bus in
Pskov with the first applicant’s sister, Ms Vera Kleyn. Ms P.,
a police officer who worked for the passport service of the Pskov
police department, was travelling on the same bus when she realised
that her purse was missing. She told her colleague, police officer Mr
M., that her purse was gone. Mr M. searched the bus and found the
purse under a seat. Ms Aleksandrovich being of Roma ethnicity,
Mr M. assumed that she had stolen the purse and arrested her. She
asked why, but Mr M. hit her on the head and said, “Only a
Gypsy could steal the purse, who else?” Ms Vera Kleyn was not
arrested.
- Ms
Aleksandrovich was taken to the Pskov regional police station. The
acting head of the station asked the senior operational officer of
the property offences investigations division Mr I. to interview her.
When asked about her identity, Ms Aleksandrovich claimed to be one
Ilona Kozlovskaya, born in 1990. According to Mr I., she was nervous,
complained of stomach pain and often asked for permission to use the
toilet. Several times he had to take her to the toilet located on the
second floor (in Russian called “third floor”) of the
police station, where female police officers Ms M. or Ms F. stayed
with her. The last visit was just before 11.30 a.m. Since there were
no female officers to accompany Ms Aleksandrovich, Mr I. let her
go inside alone and waited by the door of the toilet.
- The
door of the toilet was not locked. A witness, Ms Sh., who was in the
toilet, saw Ms Aleksandrovich and stated that she was moaning with
pain and holding her stomach. Ms Sh. left the toilet shortly after
this.
- At
11.30 a.m. on 20 May 2002 an officer on duty found Ms Aleksandrovich
unconscious on the ground in the yard of the Pskov regional police
station. It appeared that she had jumped out of the toilet window. An
ambulance took her to the Pskov regional hospital, where she died on
24 May 2002 without regaining consciousness.
B. Inquiry into Ms Aleksandrovich’s death
- Between
11.31 and 11.45 a.m. on 20 May 2002 the investigator from the Pskov
regional police station compiled a report on an examination of the
crime scene, which was carried out in the presence of two attesting
witnesses (понятые).
Photographs were taken of Ms Aleksandrovich’s body, the
building, the yard, and the toilet door and window.
- On
24 May 2002 the senior investigator with the Pskov prosecutor’s
office ordered an inquest into the circumstances of Ms
Aleksandrovich’s death and an autopsy on her body.
- The
medical report was completed on 10 June 2002. It concluded that she
had died as a result of a cerebral trauma and numerous bodily
injuries. The expert found: haemorrhages of the soft tissue of the
head with cerebral trauma; fracture of the left side of 12th neck
vertebra; fracture of the side growths of 2nd, 3rd, and 4th
vertebrae; internal tear of the right kidney; extensive haemorrhages
of the soft tissue of the left side of the vertebrae; swelling of the
left eyelid; swelling of the right forearm; bruises on the
extremities. These injuries had been caused by the impact of blunt
objects and could have been the result of striking such objects
following a fall from the third floor.
- On
24 June 2002 the senior investigator issued a decision refusing to
institute criminal proceedings into Ms Aleksandrovich’s death.
He had collected statements from police officers Mr M., Ms P., Mr I.,
Ms F. and Ms M. and the witness Ms Sh., and found as follows:
“As at the moment of Ms Aleksandrovich’s
fall out of the window of the toilet situated on the third floor of
the Pskov regional police department, there was no one in the toilet
but the deceased, the possibility is excluded of actual physical
action by anyone wishing to take her life. The actions by Mr M. and
Mr I. preceding Ms Aleksandrovich’s death had been taken
as part of their official duties ... Thus, Mr M. acted in
keeping with the requirements of the Police Act, which required him
to take measures to prevent and to stop administrative offences or
crimes. In the circumstances the measures were taken on the basis of
the statement by Ms P., who identified Ms Aleksandrovich as the
person who had attempted to steal her purse. Mr I. ... took
measures to establish Ms Aleksandrovich’s identity. The period
between the time of arrest and the time of her fall was no more than
the three-hour limit set out in the Administrative Offences Code.
During the interview Mr I. did not put any pressure on Ms
Aleksandrovich. He had not known her before and he took measures to
give assistance to Ms Aleksandrovich, who was unwell, as well as to
prevent her from behaving inappropriately.”
- Some
eighteen months later, on 26 December 2003, Ms Tseytlina, acting as
counsel for the first applicant, lodged an appeal with the Pskov Town
Court against the decision refusing to institute criminal
proceedings.
- On
19 January 2004 the Pskov Town Court allowed the complaint. It found
that the inquest had been incomplete, that Ms Aleksandrovich’s
identity had not been conclusively established, that the collected
samples and histological studies had not been examined, and that the
causation of the multiple injuries had not been explained.
- On
9 February 2004 the Pskov town prosecutor revoked the decision of
24 June 2002 and asked the investigator Mr Ts. to carry out a
further inquiry.
- On
13 February 2004 Mr Ts. issued two decisions. One decision refused to
institute criminal proceedings in connection with Ms Aleksandrovich’s
death; the other decision commissioned a new medical study into the
reasons for the bodily injuries and death of Ms Aleksandrovich.
Further to the applicants’ complaint, the Pskov town prosecutor
set aside the decision refusing to institute criminal proceedings as
taken prematurely in the absence of the findings of the medical
examination.
- On
12 March 2004 the medical expert produced his report. It stated that
all the injuries had been caused within a short period of time a few
days before the death, possibly on 20 May 2002. The injuries could
have resulted from a fall from a height of 9.6 m because of their
condensed localisation and great magnitude. No signs of a
multi-phased fall or contact with any other objects could be
detected.
- On
the same day Mr Ts. issued a new decision refusing to institute
criminal proceedings in connection with Ms Aleksandrovich’s
death. He noted in particular that the first applicant had been
invited to make a statement but had never appeared.
- On
26 October 2004 counsel for the first applicant lodged an appeal
against the investigator’s decision with the Pskov Town Court.
- On
6 June 2005 the Pskov Town Court dismissed the appeal as
unsubstantiated. It found that there was no evidence, medical or
otherwise, to support the theory that the injuries had been caused by
ill-treatment rather than by a fall from the window.
- Following
an appeal by the first applicant, on 13 July 2005 the Pskov Regional
Court quashed the Town Court’s decision. It noted that, under
Russian law, experts and witnesses may only be held criminally liable
for perjury if they have been examined as part of a criminal case. As
criminal proceedings were never instituted, the first applicant’s
access to justice was barred. It also noted that police officers are
responsible for the life and health of those individuals who, like Ms
Aleksandrovich, have been taken to a police station under constraint.
The Regional Court remitted the matter for a new examination by a
different bench of the Town Court.
- On
29 July 2005 the Pskov Town Court, during a new examination, found
the investigator’s decision unlawful, for the following
reasons:
“Establishment of the circumstances and cause of
Ms Aleksandrovich’s death, as well as the mechanism of
causation of injuries on her body, is only possible by means of
investigative actions and expert examinations carried out as part of
a pending criminal case.
In addition, the official who refused to institute
criminal proceedings did not give a legal opinion on the actions of
police officers, who have a duty to supervise individuals who have
been forcibly taken to the police station, with a view, in
particular, to preventing self-harm.”
- The
Town Court instructed the prosecutor to carry out a further inquiry.
The prosecutor lodged an appeal against the decision but subsequently
withdrew it.
- On
12 January 2006 the Pskov town prosecutor revoked the decision of
12 March 2004 and ordered an additional inquiry.
- On
16 January 2006 the investigator Mr Ts. issued a further decision
refusing to institute criminal proceedings. That decision summarised
the existing evidence and reached the conclusion that:
“...During the last visit to the toilet [Mr I.]
could not find – for objective reasons – any female
police officers who would be free from their duties, and
Ms Aleksandrovich was in the toilet alone. It follows that the
fall from the window situated on the second floor of the Pskov
regional police station was the result of a deliberate action on the
part of Ms Aleksandrovich.”
II. RELEVANT DOMESTIC LAW
A. The RSFSR Code of Criminal Procedure (in force until
1 July 2002)
- A
criminal case may be instituted on the basis of, in particular, a
complaint or report by a citizen (Article 108 (1)) or the finding of
indications of a criminal offence by an investigator or prosecutor
(Article 108 (6)).
- A prosecutor, investigator, police officer or a judge
ought to receive reports about any committed or planned crime and act
on them within three days of receipt or, in exceptional cases, ten
days. They may obtain necessary materials or explanations but not
carry out any investigative acts. They should take the decision to
open a criminal case, to refuse to institute criminal proceedings, or
to refer the case to the competent authority and notify the
complainant thereof (Article 109).
- A
prosecutor, investigator, police officer or judge should institute a
criminal case if there is a motive and grounds for opening criminal
proceedings (Article 112).
B. The Code of Criminal Procedure of the Russian
Federation (in force from 1 July 2002)
- The
victim (потерпевший)
shall have the right to take part in criminal prosecution of the
defendant (Article 22). The decision to recognise the procedural
status of a victim may be taken by an investigator or a judge
(Article 42 § 1).
- The victim has in particular the following rights: to
submit statements and evidence, to take part in investigative acts
which are carried out at his request, to read the findings of a
forensic study, to obtain copies of decisions concerning the
institution of criminal proceedings and their discontinuation or
adjournment, and to participate in the trial and appeal proceedings
(Article 42 § 2 (2, 4, 9, 11, 13 and 14)).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
- The
applicants complained under Article 2 of the Convention that
Ms Aleksandrovich had died as a result of intentional
mistreatment in the police custody and that the State authorities had
not discharged their obligations to provide medical treatment for her
and to undertake a thorough and effective investigation into the
circumstances surrounding her death. Article 2 of the Convention
provides as follows:
“1. Everyone’s right to life
shall be protected by law. No one shall be deprived of his life
intentionally save in the execution of a sentence of a court
following his conviction of a crime for which this penalty is
provided by law.
2. Deprivation of life shall not be regarded
as inflicted in contravention of this article when it results from
the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful
violence;
(b) in order to effect a lawful arrest or to
prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose
of quelling a riot or insurrection.”
A. Admissibility
1. Exhaustion of domestic remedies
- The
Government claimed that the applicants did not exhaust the domestic
remedies, because they did not lodge a judicial appeal against the
investigator’s decision of 16 January 2006. In their view, this
remedy was undoubtedly effective, because the courts had previously
set aside the investigator’s decisions.
- The
applicants replied that repeated petitions are deemed ineffective for
the purpose of exhaustion of domestic remedies (here they referred to
Assenov and Others v. Bulgaria, 28 October 1998, § 86,
Reports of Judgments and Decisions 1998 VIII). The
applicants maintained that they had done everything reasonably
possible to exhaust domestic remedies by making applications
containing pertinent information and evidence with the police, the
district prosecutor’s office and the Prosecutor General, even
though all they had to do, under the Court’s case-law, was to
bring the case to the attention of the competent authorities and then
leave it to them to do their job themselves.
- The
Court observes that the Pskov Town Court quashed the investigator’s
decision not to proceed with a criminal investigation on two
occasions, on 19 January 2004 and on 29 July 2005. Each time it found
that the investigation that had been carried out so far was
incomplete and insufficient in scope. As the Court has found in other
Russian cases, a requirement to introduce an appeal against
subsequent decisions refusing the institution of criminal proceedings
would be over-formalistic and would place an excessive burden on the
applicant. Furthermore, owing to the time that has elapsed since the
events complained of, another reversal of the refusal to open
criminal proceedings would not constitute an effective remedy (see
Georgiy Bykov v. Russia, no. 24271/03, §
46, 14 October 2010; Nikiforov v. Russia, no. 42837/04,
§ 36, 1 July 2010; and Samoylov v. Russia, no.
64398/01, § 45, 2 October 2008). Accordingly, the
Government’s objection must be dismissed.
2. Compliance with the six-month time-limit
- The
Government submitted firstly that the application was belated because
the decision of 24 June 2002, by which the institution of criminal
proceedings was refused, had been appealed against by the first
applicant’s counsel only in 2003. Alternatively, they claimed
that if the investigator’s decision of 12 March 2004 were to be
regarded as the final decision, the application was lodged more than
six months after that decision, on 29 September 2004.
- The
applicants responded that the prosecutor had not notified the
decision of 24 June 2002 to the first applicant and that the latter
had only exercised the right to appeal after retaining a legal
representative who had obtained access to the case file and learned
about the decision not to proceed with the criminal investigation.
The Russian Code of Criminal Procedure does not set any time-limit
for challenging the decision of prosecution authorities and the first
applicant had availed himself of this possibility in due course, in
accordance with the legal advice of his counsel. The applicants
further submitted that the State was under a legal obligation to
investigate Ms Aleksandrovich’s death, without a specific
application from the victim’s next of kin. In their view, the
six-month rule was not applicable in the instant case, because the
non-investigation of the death was a continuous violation. Finally,
they considered that the Government’s objection was
misconceived, because the six-month period only runs from the date of
the final decision and does not relate to earlier stages in the
proceedings.
- The
Court notes that on 29 September 2004 the first applicant submitted a
letter in which he set out an outline of the facts that had given
rise to the present case and the complaints about a violation of
Ms Aleksandrovich’s right to life, the right to protection
against torture, inhuman or degrading treatment and a lack of
effective domestic remedies. On 12 August 2005 a completed
application form was submitted by both applicants, which raised the
same complaints. Even taking into account new developments at the
domestic level, including a reopening of the investigation and the
ensuing judicial proceedings, the eleven-month delay in the
submission of the completed application form appears excessive.
Accordingly, the Court decides that the date of the application form
is the date of introduction of the application (Rule 47 § 5 in
fine of the Rules of Court).
- The
application was introduced within one month of the judgment of the
Pskov Town Court of 29 July 2005, which revoked as unlawful the
investigator’s decision refusing to institute criminal
proceedings and instructed him to take further procedural action.
Accordingly, it was not belated. The Court does not share the
Government’s view that the six-month period started running
from the date of the first decision refusing to institute criminal
proceedings. An appeal against that decision lay with a court and the
first applicant used his right to lodge the appeal within the
time-limits established in the domestic law.
- It
follows that the complaints about an alleged violation of
Ms Aleksandrovich’s right to life and an ineffective
investigation into her death were lodged within the time-limit set
out in Article 35 § 1 of the Convention. The situation is
however different with regard to the complaint of a breach of the
State’s positive obligation to provide medical treatment to Ms
Aleksandrovich during her stay in police custody. This complaint was
not mentioned in the original application and was raised for the
first time in the applicants’ observations in reply to those of
the Government, submitted on 2 May 2008. Since more than six months
have elapsed since the end of the situation complained about, this
complaint has been introduced out of time and must be rejected in
accordance with Article 35 §§ 1 and 4 of the
Convention.
3. Conclusion
- The
Court considers the complaint about an alleged violation of
Ms Aleksandrovich’s right to life and an ineffective
investigation into her death is not manifestly ill-founded within the
meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Alleged violation of Ms Aleksandrovich’s right
to life
- The
Court reiterates that Article 2 of the Convention, which safeguards
the right to life, ranks as one of the most fundamental provisions in
the Convention. Together with Article 3, it enshrines one of the
basic values of the democratic societies making up the Council of
Europe. The first sentence of Article 2 enjoins the Contracting
States not only to refrain from the taking of life “intentionally”
or by the “use of force” disproportionate to the
legitimate aims referred to in sub-paragraphs (a) to (c) of the
second paragraph of that provision, but also to take appropriate
steps to safeguard the lives of those within its jurisdiction (see,
inter alia, L.C.B. v. the United Kingdom, 9 June 1998,
§ 36, Reports of Judgments and Decisions 1998-III, and
Keenan v. the United Kingdom, no. 27229/95, § 89, ECHR
2001-III).
- The
Court further emphasises that persons in custody are in a
particularly vulnerable position and the authorities are under an
obligation to account for their treatment. As a general rule, the
mere fact that an individual dies in suspicious circumstances while
in custody should raise an issue as to whether the State has complied
with its obligation to protect that person’s right to life (see
Slimani v. France, no. 57671/00, § 27, ECHR 2004-IX
(extracts)).
- The
Government submitted that Ms Aleksandrovich must have been under
stress after being apprehended at the scene of a theft and brought to
the police station. She attempted to escape from the moment she was
apprehended: she tried to run away in the bus and in the police car,
then she lied about her name and age. Once she understood that
officer I. would not let her go and that her real identity would soon
be established, Ms Aleksandrovich began looking for other ways
to escape. Although she complained of pains in her stomach, she did
not ask for a doctor but deliberately sought to be left alone in the
toilet. The toilet window was closed but not locked and it was
clearly visible from the window that the yard was not supervised and
that a part of the fence was missing. Thus, Ms Aleksandrovich
most probably used the toilet window to attempt to flee from the
police building through the unguarded yard. The forensic study
uncovered abrasions on her left wrist and right knee which could be
an indication of her squeezing out through the window frame.
- The
applicants rejected the Russian authorities’ assertion that
Ms Aleksandrovich had attempted to escape through the toilet
window. In their submission, there was no reason to believe that Ms
Aleksandrovich, who may have been pregnant at the time, would have
done something as unrealistic as to put her life and probably the
unborn child’s life at risk and to attempt to escape from a
third-floor window for being accused of stealing 700 roubles (about
20 euros). She must have been aware that she would be presumed
innocent and that nothing of serious consequence would follow.
- On
the facts, the Court notes that Ms Aleksandrovich was taken to the
police station at about 9 a.m. on 20 May 2002 and that approximately
two and a half hours later her unconscious body was found in the
courtyard of the station. She had spent her time in the police
station with the officer Mr I., whom she frequently asked for
permission to go to the toilet.
- In
the Government’s submission, the death of Ms Aleksandrovich had
been the result of her unfortunate attempt to escape from the police
custody through the toilet window. According to them, she
miscalculated the height and the fall turned out to be fatal. The
applicants rejected this version, without however putting forward a
different one.
- The
Court reiterates that the applicable standard of proof under Article
2 is the one “beyond reasonable doubt”. In the instant
case it finds no serious evidence in support of the hypothesis of an
intentional taking of Ms Aleksandrovich’s life. A mere
assertion by the applicants that Ms Aleksandrovich could not
have jumped out of the window by her own will does not satisfy this
standard. Nor are there sufficiently strong, clear and concordant
inferences which would have allowed the Court to consider that the
explanation provided by the Government was not satisfactory or
convincing (see, by contrast, MiZigárová v.
Slovakia, no. 74832/01, § 89 et
passim, 14 December 2010). The
Government’s account of her failed attempt to escape was backed
up by the medical evidence: it confirmed the presence of marks on Ms
Aleksandrovich’s hand and knee which could have been the result
of her squeezing through the narrow frame. Ms Aleksandrovich
appears to have been under considerable stress while in police
custody, giving a false name and misrepresenting her age. She
complained about pains in her stomach, yet it is not established that
she was examined by a medical specialist or given any medicine.
Instead, she sought permission to go to the toilet and was allowed to
do so, more than once, in the presence of different female police
officers. When no female officer was available, Ms Aleksandrovich
found herself in the toilet alone.
- In
the light of the above, the Court considers that there is an
insufficient factual and evidentiary basis on which to conclude that
Ms Aleksandrovich was pushed out of the window by the police
officers, as the applicants seemed to allege (compare Erikan Bulut
v. Turkey, no. 51480/99, § 30, 2 March 2006). It
is further noted that the applicants did not claim that the police
had been negligent in taking reasonable and adequate steps to prevent
Ms Aleksandrovich from escaping.
- It
follows that there has been no violation of Article 2 under its
substantive limb.
2. Alleged failure to carry out an adequate
investigation into Ms Aleksandrovich’s death
- The obligation to protect the right to life under
Article 2 of the Convention requires by implication that there should
be some form of adequate and effective official investigation when
individuals have died in suspicious circumstances (see Yaşa
v. Turkey, 2 September 1998, §§ 98 and 100,
Reports of Judgments and Decisions 1998 VI). The
essential purpose of such an investigation is to secure the effective
implementation of the domestic laws which protect the right to life.
The investigation must therefore be capable firstly of ascertaining
the circumstances in which the incident took place and secondly of
leading to the identification and punishment of those responsible.
Although this is an obligation to make the efforts possible and is
not absolute, the authorities should nevertheless have taken the
reasonable steps available to them to gather evidence concerning the
incident, including, in particular, eyewitness testimony, forensic
evidence and, where appropriate, a proper autopsy (see Gül v.
Turkey, no. 22676/93, § 89, 14 December
2000, and Salman v. Turkey [GC], no. 21986/93, §§ 73,
105 in fine and 106, ECHR 2000-VII).
- The
Government submitted that the prosecutorial offices, which were an
authority independent from the police, had thoroughly checked on the
activities of anyone who had been in contact with Ms Aleksandrovich
since her arrival at the police station. The investigator had
carefully examined all versions of the events, including the
possibility that the offences of manslaughter, driving the victim to
commit suicide, or exceeding official powers had been committed. The
crime scene had been examined twice, two forensic medical studies and
one histological study had been commissioned, the trace evidence had
been analysed, and witnesses had been interviewed. The Russian
authorities had elucidated all the relevant circumstances and had
taken all reasonable measures to obtain the evidence in the matter.
- Furthermore,
in the Government’s view, the Pskov Town and Regional Courts,
in their decisions of 13 and 29 July 2005, had erroneously considered
that the cause of Ms Aleksandrovich’s death could only be
determined in criminal proceedings. The Government claimed that the
procedure for commissioning a forensic study at the preliminary stage
was no different from the one adopted in the criminal proceedings.
This arrangement was compatible with Article 109 of the RSFSR Code of
Criminal Procedure and the expert had been notified of criminal
liability for perjury. The Government believed that the requirement
to open a criminal case had been outside the jurisdiction of the
courts because the decision to institute criminal proceedings was
within the exclusive competence of the prosecutorial authorities.
Finally, the Government alleged that the institution of a criminal
case in the absence of evidence capable of showing “beyond
reasonable doubt” that a crime had been committed would have
been a serious breach of the law, for which the prosecutor would have
been held responsible.
- The
applicants submitted that the investigation had been incomplete and
perfunctory. Although the investigation had come to the conclusion
that Ms Aleksandrovich had jumped out of the window of her own will,
the authorities had not inquired why she would commit suicide or
choose a deadly escape route. No evidence was collected on her mental
state before and during her arrest or on any possible reasons for her
to commit such an act. The injuries on her body were attributed to
her lethal fall, without exploring other hypotheses as to their
possible source or establishing whether they had occurred on the day
of the incident or earlier. The timeline of the events had not been
reconstructed: there were discrepancies in the statements by police
officers as to the exact time her body had been discovered: the time
the ambulance was called and the time the doctors arrived was not
recorded. The investigation also failed to preserve the fingerprints
from the window ledge and to send them for identification immediately
after the incident. The applicants pointed out that in almost six
years, the authorities had only questioned one witness, commissioned
two autopsy reports and carried out some other acts: these were
punctuated by very lengthy periods of inactivity, for which the
Government did not put forward any explanation. Finally, the
applicants alleged that the investigation had suffered from a number
of other omissions and had left many questions unresolved.
- The
Court observes at the outset that the domestic authorities refused to
open a criminal investigation into the circumstances of
Ms Aleksandrovich’s death on at least four occasions (see
the decisions of 24 June 2002, 13 February and 12 March 2004 and
16 January 2006). However, on 13 and 29 July 2005 the Pskov Regional
and Town Courts determined that the prosecutor’s decision
refusing to institute criminal proceedings had been unlawful, because
the forensic evidence and witness statements should have been
collected in the framework of a criminal investigation. The
Government’s claim that Article 109 of the RSFSR Code of
Criminal Procedure made no distinction between the stage of a
preliminary inquest and a criminal investigation sits ill with the
textual reading of this provision which allowed the investigator to
obtain necessary materials or explanations but prevented him from
carrying out any investigative acts, such as for instance a forensic
study (see paragraph 29 above). Notwithstanding the findings of the
domestic courts, a criminal investigation into Ms Aleksandrovich’s
death has never been instituted. The Court considers that the failure
to open a criminal case in a situation where an individual has died
or has been seriously injured while in police custody was in itself a
serious breach of domestic procedural rules capable of undermining
the validity of any evidence which had been collected (compare
Maslova and Nalbandov v. Russia, no. 839/02, §§
94-96, 24 January 2008, in which all the evidence collected was
declared inadmissible in court because the procedure for instituting
criminal proceedings had not been complied with).
- The
domestic courts also found that the failure to open a criminal case
had entailed a breach of the first applicant’s right of access
to justice. The Court concurs in this finding, noting that in the
absence of a pending criminal investigation the applicants’
right to effective participation in the proceedings could not be
secured. Neither the first nor the second applicant was granted the
procedural status of a victim and could not exercise the procedural
rights accompanying that status, such as the rights to lodge
applications, to put questions to experts or to obtain copies of
procedural decisions (see the domestic law in paragraph 32 above and
compare with Denis Vasilyev v. Russia, no. 32704/04, §
157, 17 December 2009, and Tarariyeva v. Russia, no. 4353/03,
§ 93, ECHR 2006 XV (extracts)). Furthermore, it does not
appear that the first decision of 24 June 2002 was officially
notified or at least informally communicated to the first applicant.
This resulted in an eighteen-month delay, because the proceedings had
not been resumed until such time as the first applicant had retained
legal counsel who could access the case file and lodge an appeal
against that decision. The ensuing loss of time further undermined
the adequacy of the investigation.
- Having
regard to its above findings, that a criminal case had not been
instituted and that investigative acts had been carried out which
were not part of a criminal investigation, the Court does not
consider it necessary to analyse every alleged deficiency of the
domestic proceedings of the many that were pointed out by the
applicants. The absence of an adequate legal framework and the
failure to ensure the effective participation of the next of kin lead
it to the conclusion that the Russian authorities did not take all
reasonable steps to ascertain the circumstances in which Ms
Aleksandrovich died.
- There
has therefore been a violation of Article 2 of the Convention under
its procedural limb.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicants further complained under Article 3 of the Convention that
Ms Aleksandrovich had been submitted to ill-treatment by the police
during her arrest and that the authorities had failed to investigate
that matter. Article 3 reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
applicants claimed that Ms Aleksandrovich had been tortured in police
custody with the purpose of extracting a confession. Although she had
complained of stomach pain, she had not been provided with medical
assistance and the authorities did not inquire whether the medicine
she had been given could have had a harmful effect on her health. The
applicants also alleged that they had seen physical injuries and
cigarette burns on her body, for which the Government had not
provided any explanation. The investigation into those matters had
been incomplete because a possible link between the decision to give
her medicine and the fatal outcome had not been explored, and because
additional witnesses who could testify about visible injuries on her
body had not been interviewed.
- The
Government stressed that the police officers had considered
Ms Aleksandrovich to be a twelve-year-old adolescent and, for
that reason alone would not have subjected her to any psychological
pressure, let alone physical coercion. Moreover, she had stayed at
the police station for less than three hours and during that time the
officer Mr I. had asked her about her identity and the events in the
bus, called his colleagues from Ostrov police station and let her
visit the toilet. He had had neither time nor opportunity to take any
illegal action.
- The
Court has adopted the standard of proof “beyond
reasonable doubt” for assessing
evidence in respect of allegations of
ill-treatment and that such proof may follow from the
coexistence of sufficiently strong, clear and concordant inferences
or of similar unrebutted presumptions of fact (see Ireland v. the
United Kingdom, 18 January 1978, § 161, Series A no.
25). Where an individual is taken into custody in good health but is
found to be injured at the time of release, it is incumbent on the
State to provide a plausible explanation of how those injuries were
caused (see Ribitsch v. Austria, 4 December 1995, Series
A no. 336, § 34, and Salman, cited above, § 100).
- The
applicants referred to certain injuries and cigarette burns on the
body of Ms Aleksandrovich which, in their view, constituted
irrefutable evidence that she had been ill-treated in police custody
with a view to extracting a confession. However, the medical experts
who examined Ms Aleksandrovich’s body after her death made
no mention of cigarette burns or of any injuries that could not have
been caused by her lethal fall (see the medical reports of 10 June
2002 and 12 March 2004). The applicants did not corroborate their
claims with written statements by any witnesses who may have seen
those burns or injuries. Likewise, their claim that the medicine she
had been given could have had a detrimental impact on her well-being
appears to be conjecture without a solid basis in fact. In these
circumstances, the Court is unable to detect any evidence of the
alleged ill-treatment and considers that this 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 applicants complained under Article 13 of the Convention that the
failure of the authorities effectively to investigate, to prosecute
and to punish those responsible amounted to a violation of their
right to an effective remedy. They also alleged, citing Article 14 of
the Convention in conjunction with Articles 2, 3 and 13, that the
arrest of Ms Aleksandrovich, her ill-treatment in custody, a
subsequent lack of an effective investigation and the absence of a
remedy, had all been partly due to her and the applicants’ Roma
ethnicity.
- As
regards the complaint under Article 13, the Court notes that the only
element of this complaint which is not subsumed by the procedural
limb of the complaint under Article 2 of the Convention is the
alleged unavailability of a civil-law remedy in the absence of an
effective criminal investigation. However, the applicants never
attempted to introduce a civil claim for compensation or manifested
their intention to do so. Accordingly, this complaint is manifestly
ill-founded and must be rejected in accordance with Article 35 §§
3 (a) and 4 of the Convention.
- As
regards the allegations of discrimination, the Court observes that
the part of the complaint relating to the discriminatory motive of
Ms Aleksandrovich’s arrest was obviously belated. As to
the remainder, it finds no indication that the established defects in
the investigation were somehow connected with her ethnic origin. It
follows that this complaint is also 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
applicants claimed 150,000 euros (EUR) in compensation for the pain
and suffering caused by a violation of their wife’s and
mother’s rights under the Convention.
- The
Government submitted that the amount was excessive.
- The
Court considers that the failure to carry out an investigation into
the death of Ms Aleksandrovich which would have been compatible with
the requirements of Article 2 must have caused the applicants
distress and frustration which cannot be compensated by a mere
finding of a violation. Having regard to the nature of the defects of
the investigation it has identified, it finds it reasonable to award
the applicants jointly EUR 20,000 in respect of non-pecuniary damage,
plus any tax that may be chargeable on it.
B. Costs and expenses
- The
applicants also claimed 1,780 United States dollars (USD) for the
work of Ms Tseytlina, who represented the first applicant before the
domestic courts, and EUR 12,075 for 161 hours of work carried out by
the European Roma Rights Centre, plus EUR 1,000 in respect of
administrative expenses. The applicants produced a detailed time
sheet from Ms Tseytlina and copies of two legal services agreements,
dated 5 October 2003 and 5 October 2004.
- The
Government submitted that the applicants had not produced evidence of
payment and that the expenses had not necessarily actually been
incurred.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
accepts that the legal assistance rendered by Ms Tseytlina in the
domestic proceedings was necessary and adequate in terms of the time
spent. It was also supported with appropriate documentation,
including legal contracts and time sheets. The situation is however
different with respect to the claims by the European Roma Rights
Centre, which failed to explain in sufficient detail why so many
hours had been necessary for the preparation of the application and
memorandum. In the absence of such explanation, their claim appears
excessive and the Court considers that it may be granted only in so
far as it was reasonable as to quantum. Accordingly, the Court awards
the entire amount claimed in respect of the domestic proceedings,
that is EUR 1,320, and EUR 4,000 in respect of the Strasbourg
proceedings, plus any tax that may be chargeable on the applicants,
and rejects the remainder of the claim.
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 an alleged
violation of Ms Aleksandrovich’s right to life admissible
and the remainder of the application inadmissible;
- Holds that there has been no violation of
Article 2 of the Convention under the substantive limb;
- Holds that there has been a violation of Article
2 of the Convention under the procedural limb;
- Holds
(a) that
the respondent State is to pay the applicants, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 20,000
(twenty thousand euros) in respect of non-pecuniary damage and EUR
5,320 (five thousand three hundred and twenty euros) in respect of
costs and expenses, plus any tax that may be chargeable on the
applicants, 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 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 applicants’
claim for just satisfaction.
Done in English, and notified in writing on 3 May 2012, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
