MIKHAIL NIKOLAYEV v. RUSSIA - 40192/06 (Judgment (Merits and Just Satisfaction) : Court (Third Section)) [2016] ECHR 1070 (06 December 2016)

In the case of Mikhail Nikolayev v. Russia,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

          Luis López Guerra, President,
          Helen Keller,
          Dmitry Dedov,
          Branko Lubarda,
          Pere Pastor Vilanova,
          Alena Poláčková,
          Georgios A. Serghides, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 15 November 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 40192/06) 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 Mikhail Fedorovich Nikolayev (“the applicant”), on 12 September 2006.

2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights.

3. The applicant alleged, in particular, that he had been seriously assaulted by police officers, that the incident had not been properly investigated and that those responsible remained unpunished.

4. On 14 March 2013 the application was communicated to the Government.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1960 and lives in the village of Krasnyy Yar in the Staropoltavskiy district of Volgograd Region.

A. Alleged ill-treatment by police officers

6. On 5 August 2002 a quarrel broke out between the applicant and T. on one side and the applicant’s brothers V. and P. and P.’s wife, E., on the other. V. and E. called the police.

7. At about 8 p.m. police officers D., S., Sh. and Z. arrived and took statements from E., who complained that at about 6 p.m. the applicant and T. had burst into her home. The applicant had used obscene language towards her, threatening to “kill everyone” and attempting to hit her and her seven year-old daughter. The police also took statements from A. who explained that she had been with E. when the applicant and T. had come over, asked about V. and then entered V.’s home. She had then heard shouting, and E.’s daughter had run in to tell her mother that there was a quarrel taking place in V.’s courtyard. E. had attempted to enter the courtyard but T. had not let her in. The applicant had come out of V.’s courtyard, using obscene language towards E. and threatening her with violence. The applicant and T. had followed E. into her house, continuing to insult and threaten her in the presence of her young daughter. This had continued until E.’s husband, P., had arrived home and the applicant and T. had then left.

8. The police officers took the applicant to the Staropoltavskiy district police station. They arrived at about 11 p.m.

9. According to the applicant, he was thrown into the boot of the police car and driven for about 80 kilometres. During the journey the police officers stopped the car and assaulted him. He was allegedly again assaulted at the police station. In particular, he was allegedly punched many times in the head and chest.

10. At an unspecified time that day police officer Sh. drew up a report charging the applicant with petty hooliganism, an offence under Article 20.1 of the Code of Administrative Offences. It was stated in the report that at 6 p.m. on 5 August 2002 the applicant had started a brawl with E., using abusive language and attempting to hit her.

11. At the police station the applicant was placed in a cell for administrative offenders overnight. Another detainee, K., was also being held in the cell.

12. At about 9 a.m. on 6 August 2002 the applicant was brought before a judge of the Staropoltavskiy District Court, who found that at 6 p.m. on 5 August 2002 the applicant had started a brawl with E. while drunk and had used obscene language towards her. The applicant was sentenced to two days’ administrative detention for petty hooliganism.

13. After the hearing the applicant was placed in the Staropoltavskiy district police temporary detention facility. At his request and in view of his condition, an ambulance was called.

B. The applicant’s injuries

14. Before taking him to hospital, an ambulance paramedic, N., diagnosed the applicant with a traumatic rupture of the left eardrum, bruising to the left of the ribcage, two fractured left ribs, a stomach injury and bruising to the left hip.

15. On the same day he was examined by an otolaryngologist from the Staropoltavskiy District Polyclinic. He complained of ringing in the left ear and stated that he had been assaulted by police officers. The otolaryngologist concluded that in addition to chronic otitis, the applicant had signs of traumatic otitis of the left ear.

16. On his admission to the Staropoltavskaya Central District Hospital the applicant stated that on 5 August 2002 he had been assaulted by his brother and then by police officers. He complained of pain in the left of the ribcage, around the eighth and ninth ribs. He had an abrasion measuring 7 by 1.2 centimetres on the left of the chest. His final diagnosis was a fractured eleventh left rib confirmed by X-ray images, soft tissue bruising, abrasions on the left of the chest and traumatic otitis of the left ear.

17. On 8 August 2002 he was discharged and sent for outpatient treatment by an otolaryngologist, a physician assessment and monitoring by a surgeon.

18. The applicant received outpatient treatment at home. He was sent for a neurosurgical examination at the Volgograd Regional Polyclinic, where X-ray images showed that he had sustained fractures to the top and bottom of the left of the skull. He was urgently admitted to the Volgograd Regional Hospital. On admission the applicant complained that he had been suffering from recurrent headaches, ringing in the ears and dizziness, and hearing loss in the left ear. He explained that on 5 August 2002 he had been assaulted by police officers.

19. The applicant’s hospital treatment lasted from 24 October to 11 November 2002. He was diagnosed with a closed head injury, mild bruising on the brain, a fractured left temporal bone (confirmed by X-ray images), otitis of both ears, loss of hearing in the right ear and first degree mixed hearing loss in the left ear.

C. Investigation into the applicant’s complaint

1. Institution of criminal proceedings

20. On 8 August 2002 the applicant lodged a complaint with the chief of the Staropoltavskiy district police regarding his alleged ill-treatment by police officers. He stated that during the incident before his arrest V. had hit him on the left hip with a spade handle, and he had punched him back in the face.

21. On 10 August 2002 T. submitted a statement to the same chief of police describing the circumstances of the incident before the police arrived. He confirmed the applicant’s version of events.

22. On 20 August 2002 the applicant lodged a criminal complaint with the prosecutor’s office.

23. On 4 September 2002, following a pre-investigation inquiry, the Staropoltavskiy district prosecutor’s office instituted criminal proceedings, finding that there was sufficient indication that the elements of a crime under Article 286 § 3 (a) of the Criminal Code (abuse of powers) were present in respect of the officers’ actions.

24. On 7 September 2002 the applicant was given victim status.

25. On the same day P. was questioned as a witness in relation to the quarrel on 5 August 2002. He stated that he had punched T. but had not touched the applicant, and that the applicant had been “absolutely healthy” and had had no bruises or any other injuries.

26. V. stated that on 5 August 2002 the applicant and T. had entered his house, and that the applicant had punched him in the eye. He had managed to trap the applicant underneath him, and T. had pulled him off the applicant by the legs.

27. N., the paramedic who had provided the applicant with first aid on 6 August 2002 at the police station, gave the following statements as a witness: the applicant had complained of headaches, loss of hearing in the left ear, pain in the chest, stomach and left hip and shortness of breath. He had had hearing loss and fresh coagulated blood around his left ear, a sharp pain around his left ribs and pain in the stomach.

2. Forensic medical report of 17 December 2002

28. On 23 October 2002 the prosecutor’s office ordered a forensic medical opinion to establish the origin of the applicant’s injuries, stating that at about 2 p.m. on 5 August 2002 the applicant had been hit in the right hip by V. with a spade handle, and that the applicant had alleged to have been punched multiple times by police officers on his way to the Staropoltavskiy district police station, where he had allegedly been taken in the boot of a police car.

29. M., an expert from the Volgograd regional forensic medical bureau and A., a radiologist from the Volgograd Regional Hospital examined the applicant’s medical records, X-ray images of his skull and temporal bones taken on 24 and 28 October 2002 and X-ray images of his ribcage taken on 23 October 2002. In their report, dated 17 December 2002, they established that the applicant had a closed head injury in the form of mild bruising on the brain and a fractured left temporal bone, further complicated by traumatic otitis of the left ear. Those injuries had been caused by hard blunt objects and amounted to “severe damage to health”. The applicant also had a blunt injury to his ribcage with a fractured eighth left rib and an abrasion on the left of the chest, caused by hard blunt objects, which amounted to “medium damage to health”. The experts did not exclude the possibility that the injuries had been caused at the time and in the circumstances as alleged by the applicant.

3. Termination of the criminal proceedings against police officers D. and Z.

30. On 4 January 2003 the applicant did not identify Z. during an identification parade, saying that he had not seen whether it had been D. and Z. who had assaulted him on the road, but that they certainly had not assaulted him at the police station. On 15 January 2003 the criminal proceedings concerning the two officers were terminated under Article 24 § 1 (2) of the Code of Criminal Procedure (“CCrP”) because none of the elements of a crime were present in respect of their actions.

4. Forensic medical report of 13 February 2003

31. On 21 January 2003 the prosecutor’s office ordered an additional forensic medical opinion.

32. On 13 February 2003 S., an expert from the Volgograd regional forensic medical bureau, examined the criminal case documents submitted to him by the prosecutor’s office. These included statements by P., V., the paramedic N. and police officers Sh. and S. (see paragraphs 25-27 above and paragraph 33 below), the applicant’s medical records and X-ray images of his ribs, temporal bones and skull dated 23, 24 and 28 October 2002. S. concluded that on 5 August 2002 the applicant had received the following injuries: a fractured left temporal bone with a rupture of the left eardrum, a displaced fracture of the eighth left rib and a fractured sixth left rib, and an abrasion on the left of the chest. On 24 October 2002 the applicant had been diagnosed with mild bruising on the brain. The expert concluded that all the injuries could have been inflicted in the manner alleged by the applicant, given their nature, number and location, the mechanism of their formation, the means of their infliction, notably by punching and kicking, the positions of the victim and attackers in relation to each other, and the direction of the blows.

5. Decision of 4 March 2003 terminating the criminal proceedings against police officers S. and Sh., annulled on 15 April 2003

33. On 15 January 2003, during his examination as a suspect, police officer Sh. stated that he had not noticed any injuries on the applicant during his arrest on 5 August 2002, journey to the police station or at the police station. Nor had the applicant complained that anybody had injured him. Police officer S., who was also examined as a suspect that day, stated that he had seen abrasions on the applicant’s face immediately after his arrest.

34. On 4 March 2003 the Staropoltavskiy district deputy prosecutor terminated the criminal proceedings against police officers S. and Sh. The decision stated that before his arrest on 5 August 2002 the applicant, who had been drunk, had committed an act of petty hooliganism against V. The applicant and V. had then physically assaulted each other. The decision also included statements by the applicant saying that V. had hit him in the left hip with a spade handle and that he had punched him back in the face, that he had travelled to the police station in the boot of a police car after being thrown in by police officers, that during the journey the officers had stopped the car and beaten him up, punching him in the head and chest, after seeing that he had dented the boot lid, and that they had assaulted him again at the police station. The decision relied on the statements of D., S., Sh., Z. and other police officers who had denied the applicant’s allegations of ill-treatment.

35. On 15 April 2003 the Staropoltavskiy district prosecutor annulled the decision of 4 March 2003 as the possibility of the applicant’s injuries being inflicted during the fight with V. had not been properly explored.

6. Decision of 16 May 2003 terminating the criminal proceedings against police officers S. and Sh., annulled on 9 February 2004

36. On 16 May 2003 the Staropoltavskiy district deputy prosecutor issued a new decision terminating the proceedings, containing essentially the same wording as the previous decision. It was annulled on 9 February 2004 by the Volgograd regional deputy prosecutor as the exact circumstances of the applicant’s alleged ill-treatment had not yet been determined.

7. Decision of 9 March 2004 terminating the criminal proceedings against police officers S. and Sh., annulled on 4 February 2005

37. On 9 March 2004 an investigator of the Staropoltavskiy district prosecutor’s office terminated the criminal proceedings against police officers S. and Sh. on the same grounds as previously.

38. According to a letter of 27 August 2004, the Volgograd regional prosecutor’s office requested the Staropoltavskiy district prosecutor’s office to examine complaints by the applicant concerning the improper handling of the investigation and report on the results. According to a letter from the Volgograd regional prosecutor’s office dated 24 December 2004, a similar request was made in relation to a complaint by him concerning the termination of the proceedings. The Staropoltavskiy district prosecutor’s office was requested to submit its report before 13 January 2005.

39. According to letters addressed to the applicant from the Volgograd regional prosecutor’s office and an investigator of the Staropoltavskiy district prosecutor’s office, dated 3 February 2005 and 10 February 2005 respectively, the decision of 9 March 2004 was set aside on 4 February 2005 and the investigation was reopened.

8. Decision of 10 March 2005 terminating the criminal proceedings against police officers S. and Sh., annulled on 9 September 2005

40. According to a letter from the Volgograd regional prosecutor’s office dated 3 November 2005, a new decision terminating the proceedings was issued on 10 March 2005 and annulled on 9 September 2005. According to a letter dated 17 May 2005, the Volgograd regional prosecutor’s office had in the meantime requested the district prosecutor’s office to inform the applicant of the results of the investigation and report back before 4 June 2005.

41. On 24 October 2005 the Prosecutor General’s Office informed the applicant that his complaint concerning the termination of the proceedings had been forwarded to the Volgograd regional prosecutor’s office for examination.

42. On 19 June 2006 it requested the Staropoltavskiy district prosecutor to examine the applicant’s complaint concerning the investigation in the case and report back before 30 June 2006.

9. Reopening of the investigation in 2011

43. On 17 November 2011 the Court invited the Government to submit information concerning the investigation in the applicant’s case.

44. On 21 December 2011 the Volgograd regional prosecutor’s office set aside the decision of 9 March 2004 terminating the criminal proceedings as the possibility of the applicant receiving the injuries in the fight with V. had not been examined. An additional investigation was ordered.

45. The Volgograd regional prosecutor’s office carried out an internal investigation in connection with some irregularities found in the case file. It stated in its report of 31 January 2012 that the decisions of 4 February and 9 September 2005 (see paragraphs 39-40 above) were nowhere to be found and that according to new information received from the Staropoltavskiy district prosecutor and his deputy, the decision of 9 March 2004 had not been annulled. The prosecutor’s office therefore concluded that the decisions of 4 February 2005 and 9 September 2005 had never been taken. The report also noted other irregularities, such as the failure of the prosecutor’s office to send copies of the decisions taken in the case to their supervisory authorities or the information centre of the Ministry of the Interior, such as the decision of 9 February 2004.

10. New forensic medical report of 29 March 2012

46. On 1 March 2012 the Pallasovskiy inter-district investigation division of the Volgograd regional investigative committee ordered a new forensic medical examination of the applicant in order to determine what, if any, injuries the applicant had had after the events of 5 August 2002, and whether he could have received them as a result of falling over or striking himself against something.

47. Zh., an expert from the Staropoltavskiy district unit of the Volgograd regional forensic medical bureau, examined the applicant but found no injuries on him. As the applicant’s medical records and X-ray images from 2002 had been lost, the expert based his opinion on information contained in previous expert reports, notably a report dated 18 September 2002 containing information about his treatment at the Central District Hospital (see paragraph 16 above) and an expert’s suggestion that an opinion should be sought from a more experienced expert, and reports dated 17 December 2002 (see paragraph 29 above) and 13 February 2003 (see paragraph 32 above).

48. In his report of 29 March 2012 Zh. concluded that the only injuries he could confirm were the abrasion on the chest and bruising to the eighth and ninth ribs. They could have been received on 5 August 2002 as a result of the applicant falling over and striking himself against protruding hard blunt objects - it was unlikely that they had been inflicted by punching and kicking. As regards the other injuries, noted in the expert reports of 17 December 2002 and 13 February 2003, Zh. considered that they could not be taken into account in the assessment of damage to the applicant’s health because no information about the relevant clinical manifestations or reliable X-ray imaging supporting them could be found in the previous expert reports.

11. Forensic medical report of 19 April 2012

49. On 9 April 2012 the investigative committee ordered a new expert opinion, using the same questions as previously (see paragraph 46 above) because the conclusions made by Zh. in his report of 29 March 2012 completely contradicted the conclusions made by the experts in 2002 and 2003.

50. A report of 19 April 2012, prepared by a panel of five experts from the Volgograd regional forensic medical bureau, confirmed the abrasion on the left of the chest which, according to them, could have been caused on 5 August 2002 by a hard blunt object with a limited surface area, as a result of hitting or being hit by it.

51. The experts noted that no traumatic injuries to the skull or healed rib fractures had been found on the applicant’s X-ray images made on 16 March 2012 and 9 April 2012 respectively.

52. As the X-ray images of the ribcage, skull and temporal bones of 23, 24 and 28 October 2002 had been lost, the experts found it impossible to draw any conclusions as to the fractured left temporal bone, bruising on the brain or fractured eighths and eleventh ribs diagnosed previously.

53. The experts considered that the medical records described in the previous expert reports contained no objective confirmation as to the diagnosis of traumatic otitis of the left ear, such as injuries or bleeding in that area, and concluded that the ringing and impaired hearing of which the applicant had complained had been explained by his chronic otitis.

12. Decision of 30 April 2012 terminating the criminal proceedings against police officers S. and Sh., annulled on an unspecified date

54. On 30 April 2012 the investigative committee terminated the proceedings in accordance with Article 24 § 1 (2) of the CCrP, because none of the elements of a crime were present in respect of the actions of police officers S. and Sh.. The decision was based, inter alia, on the following new statements received during the additional investigation in 2012.

55. On 30 January 2012 E. stated that on 5 August 2002 she had seen the applicant assaulting V. but had not seen V. assaulting the applicant. After the quarrel between the two men the applicant had followed her to her house, where V. had retreated. The applicant had threatened and verbally abused her, and she had had no choice but to call the police.

56. On 30 January 2012 P. stated that the applicant had had no injuries before his arrest on 5 August 2002. He had been behaving aggressively, shouting threats at E. and V.

57. On 30 January and 7 February 2012 respectively, the applicant’s wife and T. stated that the applicant had had no injuries before his arrest.

58. On 19 March 2012 V. stated that the applicant and T. had burst into his house and attacked him. He had pushed the applicant, who had fallen onto his left side. He had then jumped on him and punched him in the head.

59. Police officers D., S., Sh. and Z. stated that on arriving in the village of Krasnyy Yar they had learned that the applicant and T. had assaulted V., and that the applicant had also threatened to kill E. and had hit her. They had arrested the applicant and T. and had then gone to E.’s house and taken statements. They had then set off to the police station. Once outside Krasnyy Yar, they had released T. because there had been too many people in the car, the engine had been overheating. T. had been behaving calmly, unlike the applicant. No violence had been used against the applicant, who had been in the passenger compartment of the car and not the boot as alleged. When arrested, the applicant had had traces of blood on his face and T-shirt and coagulated blood in his left ear. His untidy appearance and dirty face had given the impression that he had been fighting with somebody. He had been moaning and holding the left of his chest, and had clearly been in pain.

60. K., the detainee who had shared the same cell as the applicant on the night of 5 August 2002, stated that the applicant had had coagulated blood in his left ear and a swollen lip. He had been complaining of chest pain and coughing painfully. It also transpires from statements by K. and police officer G. that on their way to court on the morning of 6 August 2002 the applicant had been walking slowly. At one point he had crouched down, holding his right hand to the left of his body and saying that his ribs were aching. He had also been coughing painfully. On their way back to the police station the applicant had crouched down and complained of feeling unwell. There had been sweat on his forehead. He had been unable to lift his hands above chest height because of the pain. An ambulance had been called.

61. N., the paramedic who had examined the applicant at the police station, stated that he had complained of headaches, loss of hearing on the left side, chest pain, difficulty breathing and pain in the left hip. He had stated that his brother had hit him on the hip with a spade handle. When asked about the origin of the other injuries, he had not said anything. One of the police officers, who had been present during the examination, had shouted that the applicant had also been hit in the ear with a spade handle.

62. According to an examination report of the police car which had been used to take the applicant to the police station on 5 August 2002, the right side of the boot lid, the part closest to the petrol tank, had been dented. The decision stated that the location of the dents was different from where the applicant had said he had dented the lid, that the police officers had been unable to provide any explanation as to the dents, and that it was now impossible to examine the car as it had been written off.

63. Relying on the results of the 2012 forensic medical examination, the decision stated that the only injuries confirmed were the abrasion on the chest and bruising to the ribs, and that the applicant could have received them in the fight with V. as had been confirmed by V. in 2012.

64. It appears that on an unspecified date the decision of 30 April 2012 was annulled and the investigation was reopened.

13. Forensic psychology report of 29 May 2012

65. In his report of 29 May 2012, ordered by the investigating authority on 7 March 2012, a forensic psychologist found that the applicant had a tendency to use fantasy and invention in order to fill gaps in his memory, and that during his examination by the expert he had displayed signs of giving already prepared statements, hiding information or giving false information about the conflict situation between him and T. on one side and his brothers and E. on the other.

66. The report referred to witness statements given in the case about the events of 5 August 2002. In particular, on 6 February 2012 V. had stated that the applicant and T. had burst into his house. The applicant had punched him in the face and T. had grabbed him by the legs. The applicant had then, while sitting on him, punched him repeatedly in the face and chest. V. had stated that he had not even struck the applicant once. During his additional examination on 19 March 2012 V. had stated that in the course of the fight with the applicant and T. he had managed to slip out, finding himself on top of the applicant and punching him in the head. During the reconstruction of events V. had stated that after bursting into his house the applicant and T. had knocked him down, T. had held him by the legs and the applicant, while sitting on him, had punched him five or six times in the face and chest. He had punched the applicant in the head. He had then managed to slip out and trap the applicant underneath him. Sitting on the applicant, he had tried to punch him but T. had pulled him off by the legs.

14. Decision of 3 June 2012 terminating the criminal proceedings against police officers S. and Sh.

67. On 3 June 2012 the proceedings against police officers S. and Sh. were terminated in accordance with Article 24 § 1 (2) of the CCrP because none of the elements of a crime had been present in respect of their actions. In addition to the evidence set out in the previous decision, the decision of 3 June 2012 relied on statements by E.’s daughter that after the incident between the applicant and V. the applicant had attacked her, throwing her to the ground and kicking her about six times. He had then tried to hit her mother, E. The decision also referred to the conclusions made by the expert psychologist (see paragraph 65 above).

68. It was concluded, as in the previous decision, that the applicant’s allegations of police ill-treatment had not been based on real facts and that the only injuries confirmed in 2012, namely the abrasion on the chest and bruising to the ribs, could have been received by the applicant in the fight with V., as had been confirmed by V. in 2012.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

69. The applicant complained that he had been subjected to ill-treatment by police officers and that no effective investigation had been carried out into the incident. He relied on Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

70. The Government contested that argument.

A. Admissibility

71. The Government submitted that if after the receipt of the applicant’s first letter the Court had given him six months to submit his application form, this would have violated the six-week time-limit set out in the Practice Direction on the Institution of Proceedings dated 1 November 2003. They further noted that significant time had passed between the applicant’s first letter to the Court and his application form. The date of lodging the application should therefore be the date on which the application form had been sent, that is between 24 November 2006 (date on the application form) and 4 January 2007 (date of receipt of the application form by the Court). The Government argued that in any event the applicant had lodged his application more than six months after the investigating authority’s most recent decision before the date of lodging the application, namely that of 9 March 2004. The decisions of 4 February and 9 September 2005 had never been taken, according to the prosecutor’s office report of 31 January 2012 (see paragraph 45 above). Finally, the applicant had failed to exhaust domestic remedies as he had not lodged an appeal against the decision of 3 June 2012.

1. Six months

72. The Court observes at the outset that it is undisputed by the parties that the applicant’s first letter dated 24 June 2006 and sent on 12 September 2006 was “the first communication from the applicant setting out, even summarily, the subject matter of the application”. It also notes that according to Rule 47 § 5 in force at the time the date of first communication was considered to be the date of lodging the application, thus interrupting the six-month limit set by Article 35 § 1 of the Convention. In the event of a discrepancy, as in the present case, between the date on the application form and the date of the postmark, the latter will be taken as the date of lodging (see Kemevuako v. the Netherlands (dec.), no. 65938/09, § 24, 1 June 2010).

73. The Court takes note of the Government’s reference to the Practice Direction of 1 November 2003, which set a time-limit of six weeks for a completed application form to be returned to the Registry. However, that time-limit was indicative, rather than obligatory. It was aimed at ensuring that the applicants pursue their applications “with reasonable expedition” (see Smertin v. Russia, no. 19027/07, §§ 26-28, 2 October 2014).

74. The Court notes further that the Government essentially claimed that the application had not been submitted within the six-month time-limit which started to run on 9 March 2004, when the investigating authority’s most recent decision - before lodging the application was taken. The Court observes that, according to the letters from the prosecutor’s office, the proceedings were reopened on 4 February 2005, discontinued on 10 March 2005 and reopened again on 9 September 2005 (see paragraphs 39 and 40 above). The Court sees no reason to give preference to the prosecutor’s office report concluding in 2012 that the decisions of 4 February and 9 September 2005 had never been taken, since they were nowhere to be found (see paragraph 45 above). The Court also observes that, following the decision of 9 September 2005, the proceedings were apparently discontinued again. After a long interruption the proceedings were reopened on 21 December 2011. New investigative measures, such as examinations of witnesses and suspects, were carried out and new evidence was collected, including new medical expert opinions. On 30 April 2012 the proceedings were discontinued, then reopened again and discontinued on 3 June 2012.

75. In view of the most recent developments in the case, it is apparent that the application was introduced while the proceedings were pending. The Government’s objection concerning the six-month time-limit is therefore without merit and should be dismissed.

2. Exhaustion of domestic remedies

76. Between 2002 and 2012 the decisions discontinuing the criminal proceedings relating to the applicant’s alleged ill-treatment were set aside at least five times, twice since 2011. In these circumstances, the Court is not convinced that an appeal to a court, which could only have had the same effect, would have offered the applicant any redress. It considers, therefore, that an appeal in the particular circumstances of the present case would have been devoid of any purpose (see Nechto v. Russia, no. 24893/05, §§ 80-82, 24 January 2012).

77. The Court finds that the applicant was not obliged to pursue that remedy and that the Government’s objection concerning his failure to appeal against the decision of 3 June 2012 should therefore be dismissed.

3. Conclusion

78. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. Substantive aspect of the complaint

79. The Government maintained the findings of the investigative committee, arguing that the forensic medical examination in 2012 showed that the applicant’s injuries, notably the abrasion on the chest and bruising to the ribs, could have been received in the fight with V. before his arrest. For the Government, there was no objective evidence to support the applicant’s allegation that he had received those injuries in police custody.

80. The Court notes that the relevant general principles were recently summarised by the Court’s Grand Chamber in the case of Bouyid v. Belgium ([GC], no. 23380/09, §§ 81-88, ECHR 2015). In particular, where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of individuals within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. The burden of proof is then on the Government to provide a satisfactory and convincing explanation by producing evidence establishing facts which cast doubt on the version of events given by the victim. In the absence of such an explanation, the Court can draw inferences which may be unfavourable for the Government. That is justified by the fact that those in custody are in a vulnerable position and the authorities are under a duty to protect them (ibid., § 83).

81. The Court observes that, apart from the applicant being allegedly hit on the hip with a spade handle during his fight with V., the witness statements suggest that he had no injuries before his arrest. These include statements by the applicant’s wife, T. and P. (see paragraphs 25, 56 and 57 above). P. stated that the applicant had been “absolutely healthy” and had had no bruises or other injuries. Moreover, Sh., one of the officers suspected of ill-treatment, also stated on 15 January 2003 that he had not noticed any injuries on the applicant during his arrest on 5 August 2002, journey to the police station or at the police station (see paragraph 33 above).

82. It is true that Sh., together with the three other police officers concerned, gave different statements in 2012, stating that the applicant had had traces of blood on his face and coagulated blood in his left ear, and that he had been moaning and holding the left side of his chest, clearly in pain (see paragraph 59 above). However, in the absence of any explanation as to the change in their statements, there is no reason to consider that those given more than nine years after the events should be more reliable than those given several months after the events. The same is true in relation to the statements by police officer S., who stated on 15 January 2003 that he had seen abrasions on the applicant’s face immediately after his arrest, but changed his statements in 2012. Furthermore, his description of the applicant’s injuries (abrasions on the face) is rather inconsistent with the applicant’s condition as described by police officer G., the detainee K. and the paramedic (see paragraphs 60-61 above), and his medically diagnosed injuries.

83. The Court also observes that there is a wealth of evidence that before his arrest the applicant was engaged in active and aggressive behaviour, “starting a brawl”, using abusive language, threatening, shouting, attempting to hit and physically assaulting people (see paragraphs 7, 10, 12, 55, 56 and 67 above). This further corroborates the witness statements that before being taken into police custody the applicant did not have the injuries later found on him and which made him so weak that he had difficulty breathing, walking or lifting his hands above chest height (see paragraph 60 above).

84. The injuries diagnosed immediately after the applicant had spent time in police custody, in particular those to the chest and ribs, as well as the head injury later diagnosed following his complaints of recurrent headaches, ringing in the ears, dizziness and hearing loss, could arguably have been received as alleged by him, as a result of being punched by police officers in the head and chest after his arrest (see paragraphs 28, 29 and 32 above).

85. The above factors are sufficient to create a presumption in favour of the applicant’s version of events.

86. It remains for the Court to examine whether the Government produced any evidence establishing facts which would cast doubt on the version of events given by the applicant.

87. The Government maintained the conclusions of the investigating authority. The Court observes that according to the most recent decisions of 30 April and 3 June 2012 (see paragraphs 63 and 68 above), the abrasion on the left of the chest and bruising to the left ribs were the only injuries confirmed as a result of the forensic medical examination in 2012, and could have been received by the applicant in the fight with V., as confirmed by V. in his statements in 2012.

88. According to those decisions, on 19 March 2012 V. stated that during the incident on 5 August 2002 he had pushed the applicant, who had fallen onto his left side (see paragraph 58 above). According to the report of 29 March 2012 prepared by Zh., the abrasion on the chest and bruising to the ribs could have been received on 5 August 2002 as a result of the applicant falling over and striking himself against protruding hard blunt objects, and that it was unlikely that they had been inflicted by punching and kicking (see paragraph 48 above).

89. It appears from the above that the investigating authority meant to explain the abrasion on the applicant’s chest and bruising to the ribs by his falling over during the fight with V.

90. The Court considers that those conclusions could not reliably be made on the basis of the relevant evidence.

91. Firstly, the report prepared by Zh. of 29 March 2012 was earlier considered insufficient by the investigating authority for drawing conclusions because it fully contradicted the reports prepared by the experts in 2002 and 2003. The investigating authority therefore ordered an additional opinion, which was prepared by the panel of five forensic medical experts on 19 April 2012 (see paragraphs 49-53 above). According to its report, the abrasion on the chest could have been caused on 5 August 2002 by a hard blunt object with a limited surface area, as a result of hitting or being hit by it (see paragraph 50 above). The panel’s opinion thus suggested that the abrasion could have just as easily been received by the applicant as a result of falling and striking himself against a hard blunt object with a limited surface area as having been punched. As to the injury to the ribs, the panel did not confirm the diagnosis of bruising, unlike Zh. It stated instead that no conclusions could be made at that time about the rib fractures, diagnosed in 2002 and 2003, because the relevant X-ray images had been lost (see paragraph 52 above).

92. It follows that the expert reports of 2002 and 2003 remain the only forensic medical evidence in the case uncontested by the panel of experts in 2012 concerning the injuries to the head and ribs. According to both reports, the fractured left temporal bone, mild bruising on the brain and fracture of at least one rib could have been received as alleged by the applicant, as a result of being punched by the police officers after his arrest on 5 August 2002. The expert, S., explained that this was confirmed by their nature, number and location, the mechanism and means of their infliction, the positions of the victim and attackers in relation to each other, and the direction of the blows (see paragraph 32 above).

93. The investigating authority’s conclusions that the applicant’s head injury and rib fractures were not medically confirmed are therefore at variance with the forensic medical evidence in the case, which diagnosed those injuries and confirmed that they could have been received as a result of the applicant being assaulted by the police officers after his arrest on 5 August 2002.

94. As regards the investigating authority’s conclusion made with reference to V.’s statements in 2012 that the abrasion on the chest could have been received by the applicant as a result of falling and hitting himself against a protruding hard blunt object with a limited surface area during his fight with V., the Court notes that according to V.’s statements, set out in detail in the forensic medical report of 29 May 2012 (see paragraph 66 above), the accuracy of which is not disputed by the parties, his description of the fight in his statements of 6 February 2012 did not mention the applicant’s fall, instead mentioning V.’s being knocked down and the ensuing fight on the floor. Nor was the applicant’s fall mentioned in V.’s subsequent statements on 19 March 2012 or during the reconstruction of events. In his later statements V. described that after being knocked down he had been lying on the floor on his back, while the applicant had sat on him and T. had held him by the legs. V. had then managed to slip out and trap the applicant underneath him. T. had then pulled him off the applicant by the legs. Similarly, in 2002 V. stated that he had trapped the applicant underneath him and that T. had pulled him off by the legs (see paragraph 26 above). The Court does not see how the conclusion that the applicant had fallen and struck himself against a protruding hard blunt object with a limited surface area could reliably be made on the basis of the above statements.

95. The foregoing considerations are sufficient to enable the Court to conclude that the Government failed to discharge their burden of proof and produce evidence capable of casting doubt on the applicant’s version of events.

96. The Court finds that the acts of violence the applicant was subjected to in police custody amounted to inhuman and degrading treatment.

97. There has accordingly been a violation of Article 3 under its substantive limb.

2. Procedural aspect of the complaint

98. The authorities, which were promptly made aware of the applicant’s credible allegations of police ill-treatment, were under a procedural obligation, arising from Article 3 of the Convention, to carry out an effective investigation (see Kopylov v. Russia, no. 3933/04, §§ 132-35, 29 July 2010).

99. The criminal proceedings relating to the applicant’s allegations of ill-treatment were instituted after a delay of almost a month. In discontinuing the proceedings because none of the elements of a crime were present in respect of the police officers’ actions in 2003 to 2005, the investigating authority relied heavily on the testimony of the police officers who denied any involvement in the applicant’s ill-treatment. Its decisions lacked reasons for discarding the evidence which supported the applicant’s consistent statements, such as the forensic medical opinions of 2002 and 2003 or the witness statements that before his arrest the applicant had not had the injuries found on him immediately after his release from police custody. Nor did the investigating authority make any efforts to elucidate the discrepancies in the evidence, for example, between police officer Sh.’s initial statements that he had not seen any injuries on the applicant before his arrest, his denial of any ill-treatment and the evidence of the applicant’s injuries after the time spent by him in police custody. As a result, the investigating authority did not provide any explanation as to the applicant’s medically diagnosed injuries in those decisions.

100. The same is true as regards the investigation after the reopening of the proceedings in 2011, in so far as the head injury and rib fractures are concerned. The investigating authority’s conclusions that those injuries were not medically confirmed are at odds with the forensic medical evidence in the case. Those conclusions, as well as the conclusion that the other injuries could have been received by the applicant in the fight with V. before he was taken into police custody, could not reliably be made on the basis of the relevant evidence (see paragraphs 90-94 above). No effort was made to reconcile contradictory evidence or give reasons for discarding the evidence supporting the applicant’s allegations.

101. The Court finds that the investigating authority’s conclusions were not based on a thorough, objective and impartial analysis of all the relevant elements (see Razzakov v. Russia, no. 57519/09, § 63, 5 February 2015).

102. There has therefore been a violation of Article 3 of the Convention under its procedural head.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

103. The Court has examined the remainder of the applicant’s complaints as submitted by him. However, having regard to all material in its possession, the Court finds that these complaints 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 must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

104. 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

105. The applicant claimed 169,781 euros (EUR) in respect of pecuniary and non-pecuniary damage.

106. The Government contested the claims.

107. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 13,000 in respect of non-pecuniary damage.

B. Default interest

108. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaints concerning the applicant’s alleged ill-treatment in police custody admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 3 of the Convention under its substantive limb;

3. Holds that there has been a violation of Article 3 of the Convention under its procedural limb;

4. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 13,000 (thirteen thousand euros) plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State 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;

5. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 6 December 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen Phillips Luis López Guerra
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> MIKHAIL NIKOLAYEV v. RUSSIA - 40192/06 (Judgment (Merits and Just Satisfaction) : Court (Third Section)) [2016] ECHR 1070 (06 December 2016) URL: http://www.bailii.org/eu/cases/ECHR/2016/1070.html Cite as: ECLI:CE:ECHR:2016:1206JUD004019206, CE:ECHR:2016:1206JUD004019206, [2016] ECHR 1070