ALEKSANDR ANDREYEV v. RUSSIA - 2281/06 (Judgment (Merits and Just Satisfaction) : Court (Third Section)) [2016] ECHR 200 (23 February 2016)

In the case of Aleksandr Andreyev v. Russia,

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

          Luis López Guerra, President,
          George Nicolaou,
          Helen Keller,
          Dmitry Dedov,
          Branko Lubarda,
          Pere Pastor Vilanova,
          Alena Poláčková, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 2 February 2016,

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

PROCEDURE

1. The case originated in an application (no. 2281/06) 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 Aleksandr Vasilyevich Andreyev (“the applicant”), on 16 December 2005.

2. The applicant was represented by the Committee against Torture, a non-governmental organisation based in Nizhniy Novgorod. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

3. The applicant alleged, in particular, that he had been unlawfully deprived of his liberty and ill-treated in police custody, and that no effective investigation into his ill-treatment had been carried out.

4. On 31 August 2011 the application was communicated to the Government.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1987 and lives in Orsk, the Orenburg region.

A. The applicant’s alleged ill-treatment in police custody

1. The applicant’s account of events at the Sovetskiy district police department

6. The applicant received a summons from investigator K. to attend office no. 44 at the Sovetskiy district police department of the town of Orsk (отдел внутренних дел Советского района г. Орска) at 11 a.m. on 15 February 2005. The summons contained no further details. At 11 a.m. on 15 February 2005 the applicant, who was 17 years old at the time, arrived at the police station, as requested, together with his father and his friend Ms L. A police officer on duty registered their arrival at the police station. Investigator K. was absent and the applicant was asked to wait. Police officer M. took the applicant to his office.

7. At some point the applicant’s father was asked to participate in an investigative measure. When this was finished he could not locate the applicant at the police station. He and Ms L. were requested by police officer M. to leave the building. They remained outside near the main entrance waiting for the applicant. At some point they were told that the applicant was no longer in the police station. They left at about 7 p.m. As the applicant did not appear at home his parents enquired about his whereabouts at the Sovetskiy district police department, by telephone and in person. After many unsuccessful attempts they were finally told that the applicant had gone to police station no. 2 together with police officer Sh. and that he had stayed there until 8 p.m.

8. According to the applicant, police officer Sh. took him to an experts’ room where he was photographed and fingerprinted. Then, shortly after 3 p.m., Sh. led him out of the police station from a back door in the experts’ room and took him to Orsk police department no. 2 in a police car for questioning. According to the police station logbook, the applicant left the Sovetskiy district police station at 3.20 p.m. on 15 February 2005.

2. The applicant’s account of events at Orsk police department no. 2

9. The applicant provided the following account of events at police department no. 2. The head of the police department, P., and police officer E. interviewed him about his alleged involvement in thefts from certain shops. The applicant denied involvement in the thefts. E. shackled the applicant’s hands behind his back, told him “to sit on the floor with his legs crossed in front of him”, tied his legs with a rope, “threw the rope across the neck to the back”, “hung it on a chair and pulled it”. The applicant felt severe pain in his back.

10. At some point operative police officer K. came in and interviewed the applicant. When P. and E. both came out K. untied the applicant’s legs and demanded that the applicant write a statement of “surrender and confession”. The applicant maintained his refusal. K. opened the door and called E. The applicant “understood that he would be tortured again”. He ran up and hit his head against the glass door of a bookcase. The glass broke and the applicant received cuts on his face above the left eyebrow and on his head.

11. Then E. tied the applicant’s hands and legs behind his back, passed a metal bar under the rope and hung him on the bar, the ends of which were put on the table and the back of a chair. The applicant had been hanging in that position for about eight minutes when somebody took the bar off and asked E. to untie the applicant. E. refused.

12. At some point E. came out and the applicant was untied and the handcuffs were removed from him. K. demanded again that the applicant write a statement of “surrender and confession”. The applicant started writing the statement as requested. P. came in together with lawyer S. who offered his services as counsel for the applicant’s defence. The applicant refused because he wished to be represented by a lawyer of his own choice.

13. Reluctant to continue writing the confession statement, the applicant was taken by E., who was allegedly drunk, to his office. An ambulance, which had been called after the incident with the broken glass, arrived and the applicant was examined by the ambulance medical assistant, who provided him with first aid and left.

14. Thereafter the applicant was questioned by two police officers, who were also drunk. One of them hit the applicant several times on both ears simultaneously with the palms of his hands. The other police officer punched him in the head.

15. Then E. tied the applicant up and hung him on the bar again. The applicant saw blood dripping from his head to the floor.

16. Police officer B. untied the applicant and demanded that he finish writing the statement of “surrender and confession”. The applicant did so and was allowed by P. to leave. The applicant went home, which was about three kilometres away, on foot.

3. The applicant’s hospitalisation

17. At about 9.40 p.m. the applicant arrived home. At 11.05 p.m. he was hospitalised. According to the medical records of town hospital no. 2, where he stayed for in-patient treatment until 4 March 2005, at the time of his admission the applicant was complaining of headache, nausea, vomiting and giddiness. He explained that he had been beaten up by police officers three hours previously. He had an abrasion up to 2 cm long over the left eyebrow and bruises on his scalp. He was diagnosed with an abrasion on the left superciliary arch, contusions of the soft tissues of the head and concussion.

4. Police records

18. The evidence in the case file indicates that police officer E. drew up a record of the applicant’s being “conveyed” (доставление) to the police station. According to that record, at 7 p.m. on 15 February 2005 the applicant was brought to the police station “for examination” (разбирательство) and searched in the presence of attesting witnesses V. and Sh. It was stated in the record, which was signed by police officer E., the two attesting witnesses and the applicant, that the applicant, a “violator”, had been informed of the rights and obligations of a person against whom administrative proceedings were initiated. The record contained no further details.

B. Inquiry into the applicant’s alleged ill-treatment and detention

1. Refusal to open a criminal investigation

19. On 15 February 2005 the Orsk police department was alerted by the town hospital that the applicant had been taken to hospital with injuries allegedly inflicted by police officers.

20. On 17 February 2005 the Orsk Sovetskiy district prosecutor’s office received information about the applicant’s alleged ill-treatment by police officers.

21. On 21 February 2005 the applicant’s father complained to the Sovetskiy district prosecutor’s office that the applicant had been the victim of police officers’ unlawful actions. On 4 March 2005 he lodged a similar complaint with the Orenburg regional prosecutor’s office.

22. The Sovetskiy district prosecutor’s office carried out a preliminary inquiry. Its investigator B. received explanations from a number of persons, including the following persons.

(a) Explanations received by the investigating authority

23. On 18 February 2005 lawyer S. stated that on 15 February 2005, some time after 7.20 p.m. [the head of the police department] P. had asked him to be present at an investigative measure as counsel for the defence of the applicant, who was suspected of having committed a crime. S. had seen coagulated blood on the applicant’s eyebrow and on his head. S. had asked the operative officers to leave the office and asked the applicant about the origin of his injuries. The applicant had explained that he himself had hit his head against a bookcase. S. had offered his services as counsel for his defence. The applicant refused, as he wanted lawyer Z. to defend him.

24. On 22 February 2005 police officer E. stated that he had left work at 6.50 p.m. on 15 February 2005. At a bus stop he had seen the applicant who had been suspected of having committed thefts from two shops. E. had taken the applicant to the police station, where he had invited two attesting witnesses so that a record could be drawn up about the applicant’s being conveyed to the police station and searched. In the presence of the attesting witnesses the applicant had jumped from his chair and hit his head against the glass door of a bookcase. The glass had broken and the applicant had received cuts on his eyebrow and head. E. had provided the applicant with first aid, had drawn up the record of his being conveyed to the police station, and had transferred him to operative officer K. Some twenty minutes later K. had brought the applicant back, as the applicant was complaining of feeling unwell. E. had called an ambulance. The ambulance staff had provided the applicant with first aid. E. denied any use of force or psychological pressure in relation to the applicant.

25. On 22 February 2005 the head of the police department P. stated that at 7-7.30 p.m. on 15 February 2005 he had been informed that the applicant had been brought to the police station on suspicion of having committed a theft. P. gave statements similar to those by E. about the applicant hitting the bookcase with his head. According to P., the applicant had stayed at the police station for one hour and had left at about 8 p.m. None of his subordinates had committed any unlawful actions in relation to the applicant.

26. On 24 February 2005 attesting witnesses V. and Sh. stated that at about 7 p.m. they had been invited to be present as attesting witnesses at the applicant’s search. After being searched the applicant had jumped to his feet, run up and hit his head against a bookcase. The glass of the bookcase had broken and the applicant had cut his eyebrow. Two police officers had been present during the incident.

27. On 3 March 2005 police officer Sh. stated that on 15 February 2005 at the Sovetskiy district police station he had taken the applicant to the experts’ room, where the applicant had been fingerprinted and photographed, and then to the exit. Sh. denied having taken the applicant to police station no. 2.

28. On 5 March 2005 operative officer K. stated that the police had had information, notably explanations by an eyewitness to a theft at a certain shop, that the applicant could have been involved in the theft. K. had interviewed the applicant, who had been known to the police on account of thefts previously committed by him, at about 7 p.m. on 15 February 2005, after the incident with the broken glass. The applicant had confessed to the theft and had written a statement. After that E. had called the ambulance as the applicant was complaining of a headache. K. denied any use of force in relation to the applicant.

29. On 11 March 2005 investigator G. stated that she had requested that the applicant be summoned to the police station for an identity parade in a criminal case concerning assault and battery. On 15 February 2005 she had carried out the identity parade with the participation of the applicant’s father. As the applicant’s lawyer had not appeared she had cancelled the identity parade in which the applicant was to have participated. The applicant had left her office together with police officer Sh.

30. Expert M. stated that in the afternoon of 15 February 2005 police officer Sh. had brought the applicant to the experts’ room. The applicant had been fingerprinted and photographed. M. confirmed that there was another exit from the building through the experts’ room. He stated, however, that Sh. and the applicant had left through another, “normal” door, through which they had arrived.

31. The applicant gave a description of his alleged ill-treatment (see paragraphs 9-16 above). He stated that he had hit his head against the bookcase in order to stop the ill-treatment. He also stated that police officer E. had threatened to kill him if he told the ambulance staff about the ill-treatment. When left with lawyer S. in private he had told him about the ill-treatment and forced confession.

32. The applicant’s father and Ms L. gave statements about their visit to the police station on 15 February 2005 (see paragraphs 6 and 7 above).

(b) Forensic medical expert’s opinion

33. On 14 March 2005 investigator B. ordered a forensic medical examination of the applicant, which was carried out by expert B. on 17 March 2005. The expert was requested to determine the degree of harm to the health of the applicant, who had allegedly been beaten up by police officers on 15 February 2005. The applicant complained of recurring headaches. He had a scar over the left eyebrow. Expert B. also examined his medical records from the town hospital (see paragraph 17 above). In his report no. 892 the expert concluded that the applicant’s injuries, notably the concussion, the wound over the left eyebrow and the bruises on the scalp, had been inflicted by hard blunt objects shortly before he was hospitalised. The injuries were qualified as light damage to health as they had caused short-term health disorder.

34. On 17 March 2005 investigator B. ordered that by virtue of Article 24 § 1 (2) of the Code of Criminal Procedure (“CCrP”) no criminal proceedings were to be instituted in respect of the applicant’s complaint, in view of the absence of constituent elements of a crime under Article 286 of the Criminal Code (abuse of power) in the acts of police officers Sh. (as well as under Article 301 of the Criminal Code, unlawful arrest or detention), P., K., E. (also under Article 302 of the Criminal Code, coercion to obtain statements), and four others.

35. On 21 March 2005 a deputy prosecutor of the Sovetskiy district prosecutor’s office overturned the investigator’s decision, as the inquiry on which it was based was considered incomplete, and ordered an additional inquiry.

(d) Additional explanations received by the investigating authority

36. Investigator B. received the following additional explanations.

37. On 22 March 2005 N., a medical assistant, stated that at 7.30 p.m. an ambulance had been called by police station no. 2. She and G., a junior nurse, had gone to the police station. She had found the applicant in a room with two police officers, who had explained to her that the applicant had hit the glass with his head and broken it. She had examined the applicant, who had cuts over the left eyebrow and on the head. Her examination had not revealed any obvious signs of concussion. The applicant had taken off his clothes. She had not seen any visible injuries on his body.

38. On 23 March 2005 junior nurse G. gave similar explanations. She noted that the applicant had been in a room with two police officers, one of whom had later come out. Then medical assistant N. had examined the applicant.

39. On 23 and 24 March 2005 Ya. and V. stated that in February 2005 they had undergone in-patient treatment at the town hospital and had been in the same ward as the applicant, who had told them that he had been ill-treated at the police station. Ya. understood that police officers had handcuffed the applicant and hung him and afterwards hit his head against the wall. According to V., police officers had handcuffed the applicant and hung him, and then either he himself had hit the bookcase with his head or police officers had hit his head against the bookcase.

40. The applicant’s schoolteacher, I., characterised the applicant as sly, deceitful and shifty.

41. Forensic medical expert B. stated that he did not consider it possible to establish reliably how the applicant had received concussion. It could have been the result either of the applicant’s hitting the bookcase with his head or of being punched on the head.

(e) Decision of 24 March 2005

42. On 24 March 2005, on the basis of the results of the inquiry, investigator B. again refused to open a criminal case under Article 24 § 1 (2) of the CCrP, on the grounds that the constituent elements of a crime in the acts of police officers Sh., P., K., E. and four others were absent. As before, the investigator referred to a crime under Article 286 of the Criminal Code (abuse of power), as well as Article 301 of the Criminal Code (unlawful arrest or detention) in relation to Sh., and Article 302 of the Criminal Code (coercion to obtain statements) in relation to P., K. and E.. The investigator found that the applicant had been at the Sovetskiy district police department from 11 a.m. until 3.20 p.m. on 15 February 2005 for an identity parade in a criminal case concerning assault and battery, and that at about 7 p.m. on the same day police officer E. had taken him to police station no. 2 on suspicion of theft. The investigator held that the results of the inquiry had showed that the applicant’s injuries were self-inflicted, as a result of his hitting the bookcase with his head, and that the allegations of ill-treatment by police officers were devoid of any foundation.

2. Domestic courts’ review of the refusal to open a criminal investigation under Article 125 of the Code of Criminal Procedure

43. The applicant’s father appealed against the investigator’s decision of 24 March 2005. He complained, in particular, that the investigator had never held an identity parade in order to identify the two unknown police officers who had delivered blows to the applicant’s head.

44. On 20 May 2005 the Orsk Sovetskiy District Court, sitting in a single-judge formation, heard the applicant’s father, his representative and a deputy prosecutor of the Sovetskiy district prosecutor’s office, and examined the evidence of the inquiry carried out by the investigator. It was satisfied that the inquiry had been comprehensive and thorough, and that the investigator’s assessment of its results had been impartial, reasoned and logical. It dismissed the applicant’s father’s appeal. It noted that an identity parade could only be held once a criminal case had been opened, which was not the case in the present proceedings.

45. The applicant’s father appealed against the District Court’s decision. On 16 June 2005 the Orenburg Regional Court dismissed his appeal and fully endorsed the first-instance court’s findings. It held, inter alia, that the evidence of the inquiry had reliably shown that on 15 February 2005 the applicant had not been arrested as a suspect in a criminal case.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

46. The applicant complained that he had been taken to police station no. 2 and held there in breach of Article 5 § 1 (c) of the Convention, the relevant part of which reads as follows:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law ...

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so ...”

A. Admissibility

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

B. Merits

48. The Government acknowledged a violation of the applicant’s rights under Article 5 § 1 of the Convention. In particular, they submitted that the applicant’s deprivation of liberty from 7 p.m. to 8 p.m. on 15 February 2005 had been effected in breach of Articles 91 and 92 of the Code of Criminal Procedure, which regulated the grounds and procedure for the arrest of a suspect in criminal proceedings, and Article 423 of the Code of Criminal Procedure concerning the enhanced guarantees for a juvenile suspect in case of arrest in criminal proceedings.

49. The Court observes that according to both parties on 15 February 2005 the applicant was held at police station no. 2 for at least one hour. While the only official document related to the applicant’s deprivation of liberty on the above date is the record of his being conveyed to the police station as an administrative offender (see paragraph 18 above), it appears from the evidence in the domestic inquiry that the real reason for the applicant’s deprivation of liberty was a suspicion that he had committed a theft (see statements by lawyer S. and police officers E., P. and K. in paragraphs 23-25 and 28 above, and the investigator’s findings in paragraph 42 above). Indeed, it is on the ground of the authorities’ failure to follow the procedure prescribed by the Code of Criminal Procedure for the arrest of the applicant, a minor at the time, as a suspect in criminal proceedings that the Government have acknowledged a violation of Article 5 § 1 of the Convention in the present case.

50. The Court emphasises the fundamental importance of the guarantees contained in Article 5 of the Convention for securing the right of individuals in a democracy to be free from arbitrary detention by the authorities. It has reiterated in that connection that any deprivation of liberty must not only have been effected in conformity with the substantive and procedural rules of national law, but must equally be in keeping with the very purpose of Article 5, namely to protect the individual from arbitrariness (see Kurt v. Turkey, 25 May 1998, §§ 122-23, Reports of Judgments and Decisions 1998-III, and Fatma Akaltun Fırat v. Turkey, no. 34010/06, § 29, 10 September 2013). What is at stake is both the protection of the physical liberty of individuals and their personal security in a context which, in the absence of safeguards, could result in subversion of the rule of law and place detainees beyond the reach of the most rudimentary forms of legal protection (see Kurt, cited above, § 123).

51. The foregoing considerations are sufficient to enable the Court to conclude that the applicant’s detention at police station no. 2 on suspicion of his having committed a criminal offence in breach of the procedure provided for by the Code of Criminal Procedure for the arrest of a juvenile suspect in criminal proceedings amounted to a violation of Article 5 § 1 (c) of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

52. The applicant complained that he had been tortured on 15 February 2005 at police station no. 2 and that no effective investigation into his complaint had been carried out. 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.”

53. The Government submitted that the case documents refuted the applicant’s arguments. In particular, had the applicant been handcuffed, tied and hung, as alleged by him, his extremities would have born abrasions or other marks. However, the ambulance team had found no such injuries during his examination. The only injuries found on him were on his face and those had been self-inflicted. Therefore, the standard of proof “beyond reasonable doubt” had not been reached in the present case. The Government further argued that a prompt, independent and comprehensive investigation had been carried out into the applicant’s allegations of ill-treatment by police.

54. The applicant agreed that the injury over the left eyebrow had been sustained as a result of his hitting the glass of the bookcase. However, as regards the concussion, it could have been sustained as a result of his being punched on his head by the police officers.

A. Admissibility

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

B. Merits

56. The Court reiterates that to assess the evidence on which to base the decision whether there has been violation of Article 3 it adopts the standard of proof “beyond reasonable doubt”. 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; and, recently, Uzeyir Jafarov v. Azerbaijan, no. 54204/08, § 57, 29 January 2015; and Bouyid v. Belgium [GC], no. 23380/09, § 82, 28 September 2015). However, where an individual is taken into police custody in good health and is found to be injured on release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which a clear issue arises under Article 3 (see Ribitsch v. Austria, 4 December 1995, § 34, Series A no. 336, and Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999-V). Where the events in issue lie wholly or in large part within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII, and Bouyid, cited above, § 83).

57. Where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of the police or other similar agents of the State, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, requires by implication that there should be an effective official investigation. Such an investigation should be capable of leading to the identification and punishment of those responsible. Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice, and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see, among other authorities, Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV).

58. Turning to the circumstances of the present case, the Court notes that after the time spent in police custody the applicant was found to be injured. The Court will first examine whether the Government discharged their burden of proof (see paragraph 56 above).

59. The Court observes that the applicant did not deny the act of self-harm explaining it by his fear that his ill-treatment would continue and as a way to stop it (see paragraphs 10 and 31 above). Nor did he deny that the abrasion on his face could have been sustained as a result of that act, as claimed by the Government. The Government, however, did not comment on the applicant’s other injuries. Apart from the injury on the face, the applicant had bruises on the scalp which, according to the forensic medical expert, could have been inflicted by hard blunt objects shortly before he was taken to hospital on 15 February 2005 (see paragraph 33 above). The expert’s finding is consistent with the allegation of the applicant being punched on the head. Neither the Government’s submissions nor the evidence in the case file suggest that all of the “bruises” (plural) on the scalp could have been sustained as a result of a single impact of the applicant’s head with the glass. As regards the concussion, according to the forensic medical expert opinion it could have been caused either by the applicant hitting the bookcase with his head or by being punched on the head (see the expert’s statements in paragraph 41 above). The Court notes that the ambulance medical assistant N., who examined the applicant shortly after his head had been hit against the glass of the bookcase, did not detect symptoms of concussion (see N.’s statements in paragraph 37 above). This gives some credence to the applicant’s assertion that he had been punched on the head after being seen by the ambulance team.

60. Furthermore, it is not to be overlooked that both the act of self-harm and the alleged ill-treatment by police officers occurred during the applicant’s unlawful detention in police custody (see paragraph 51 above), while he was entirely under the control of police officers, which made him - a minor at the time - particularly vulnerable. His questioning by police officers in those circumstances resulted in his confession to the theft of which they suspected him (see statements by police officer K. in paragraph 28 above).

61. Moreover, the Government’s argument that the applicant’s alleged handcuffing, tying and hanging ought to have left abrasions or other traces on the applicant’s extremities (which lasted about eight minutes as concerned one episode, see paragraph 11 above) is not based on any medical opinion.

62. In view of the above, the Court finds that the Government have not satisfactorily established that all the applicant’s injuries were caused otherwise than by the treatment he underwent while in police custody. The State therefore bears responsibility for the ill-treatment complained of, which was serious enough to amount to inhuman and degrading treatment.

63. As regards the procedural obligation of the State to carry out an effective official investigation, the Court has previously found that in the context of the Russian legal system in cases of credible allegations of treatment proscribed under Article 3 of the Convention, it is incumbent on the authorities to open a criminal case and conduct a proper criminal investigation in which the whole range of investigative measures are carried out and which constitutes an effective remedy for victims of police ill-treatment under the domestic law. The mere fact of an investigating authority’s refusal to open a criminal investigation into credible allegations of serious ill-treatment in police custody is indicative of the State’s failure to comply with its obligation under Article 3 to carry out an effective investigation (see Lyapin v. Russia, no. 46956/09, §§ 129 and 132-36, 24 July 2014).

64. The Court has no reason to hold otherwise in the present case. While the applicant made a credible assertion of ill-treatment by police officers, the investigating authority dismissed his allegations as manifestly ill-founded on the basis of the results of the preliminary inquiry, and refused to open a criminal investigation. As regards the judicial review of the investigating authority’s refusal to open a criminal case, while noting that such important investigative measure as an identity parade, which would enable the applicant to identify the police officers who had allegedly subjected him to ill-treatment, could only be carried out once a criminal case was opened, the domestic courts did not indicate why they regarded the investigator’s refusal to open a criminal case as “reasoned and logical” (see paragraphs 44-45 above). The Court would further note that despite being alerted promptly about the applicant’s alleged ill-treatment at the police station (see paragraphs 19-21 above), the authorities carried out the applicant’s forensic medical examination only with a month’s delay (see paragraph 33 above). At that time the expert’s opinion was sought about the applicant’s being “beaten up by police officers” and no information was given to the expert about the applicant’s hitting the bookcase. Though that information was later communicated to the expert and his opinion was sought (see paragraph 41 above), such an important question - as to whether all of the bruises on the applicant’s head could have been sustained as a result of a single impact against the glass - was never put to a medical expert. Furthermore, it does not appear that the police premises were searched for the objects - a rope and metal bar - allegedly used for the applicant’s ill-treatment.

65. The Court finds that the authorities failed in their obligation to conduct an effective investigation into the applicant’s alleged ill-treatment in police custody.

66. In conclusion, the Court holds that there has been a violation of Article 3 in its substantive aspect, as well as under its procedural head.

III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

67. The applicant further complained that the authorities had failed to carry out an effective investigation into his complaint of ill-treatment in police custody, and that their refusal to open a criminal case had made it impossible for him to be granted the status of “victim”, which could have entitled him to compensation for the alleged ill-treatment. He relied on Article 13 of the Convention, which reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

68. The Government contested that argument. In particular, they submitted that the absence of the constituent elements of a criminal offence as the ground for the termination of criminal proceedings or refusal to institute criminal proceedings, did not imply the absence of an act as a result of which harm had been sustained. What it did imply was that the act and harm, if inflicted, did not fall within the sphere of interests protected by the criminal law. However, the act and harm in question could fall within the sphere of interests protected by the law on administrative offences or civil law on tort. Accordingly, decisions for termination of criminal proceedings or refusal to initiate criminal proceedings did not prevent the lodging of a civil-law action seeking compensation for the harm sustained. In civil proceedings a court would establish the fact of harm and the causal link between the harm and the acts of the respondent. The right to bring a civil action where, as in the present case, a decision not to initiate criminal proceedings had been taken, followed from the constitutional interpretation of the relevant provisions of the Code of Criminal Procedure. The Government referred to decision no. 90-O of 24 February 2005 of the Constitutional Court of the Russian Federation.

69. The applicant submitted in reply to the Government’s observations that he had been denied an effective remedy for his complaint about his ill-treatment in police custody, since no effective investigation into his complaint had been carried out by the domestic authorities.

70. The Court notes that this complaint is closely linked to the issue raised under the procedural aspect of Article 3 of the Convention and that it should therefore be declared admissible.

71. The Court further observes that this complaint, as submitted by the applicant, who did not attempt to institute any proceedings for compensation, was limited to a general statement, without any references to domestic law or practice. Having regard to the finding of a violation of Article 3 under its procedural head on account of the respondent State’s failure to carry out an effective investigation, the Court considers that it is not necessary to examine this complaint under Article 13 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

72. 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

73. The applicant claimed 40,000 euros (EUR) in respect of non-pecuniary damage.

74. The Government contested the claim.

75. Making its assessment on an equitable basis and having regard to the nature of the violations found, the Court awards the applicant EUR 26,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

B. Costs and expenses

76. The applicant also claimed EUR 5,697.75 for costs and expenses incurred before the Court.

77. The Government contested the claim.

78. 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 considers it reasonable to award the sum of EUR 4,600 for the proceedings before it. This amount is to be paid into the bank account of the applicant’s representative, as requested by the applicant.

C. Default interest

79. 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 application admissible;

2. Holds that there has been a violation of Article 5 § 1 (c) of the Convention;

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

4. Holds that there is no need to examine the complaint under Article 13 of the Convention;

5. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 26,000 (twenty-six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 4,600 (four thousand six hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid into the bank account of the applicant’s representative;

(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;

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

Done in English, and notified in writing on 23 February 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 >> ALEKSANDR ANDREYEV v. RUSSIA - 2281/06 (Judgment (Merits and Just Satisfaction) : Court (Third Section)) [2016] ECHR 200 (23 February 2016) URL: http://www.bailii.org/eu/cases/ECHR/2016/200.html Cite as: [2016] ECHR 200