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FIRST
SECTION
CASE OF DMITRACHKOV v. RUSSIA
(Application
no. 18825/02)
JUDGMENT
STRASBOURG
16 September 2010
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 Dmitrachkov v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 26 August 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 18825/02) 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 Aleksey Dmitrachkov
(“the applicant”), on 24 April 2002.
- The
applicant was represented by Mr Ilya Yevpolov, a lawyer practising in
the town of Buzuluk, the Orenburg Region. The
Russian Government (“the Government”) were represented by
Mr P. Laptev, former Representative of the Russian Federation at the
European Court of Human Rights.
- The
applicant alleged that the criminal proceedings against him had been
unfair. He also complained of ill-treatment at the hands of the
investigative authorities and the lack of an effective investigation
into the matter.
- On
3 October 2005 the President of the First Section decided to
communicate the complaint concerning the alleged ill-treatment and
the related investigation into these events to the respondent
Government. It was also decided to examine the merits of the
application at the same time as its admissibility (Article 29 §
1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1977 and lives in the town of Buzuluk in the
Orenburg Region.
A. The applicant's arrest and alleged ill-treatment
- Late
in the evening of 16 April 2001 the applicant was arrested at his
home on suspicion of having committed theft and robbery. He was
placed in the isolation wing of the Buzuluk police station.
- According
to the applicant, in response to his requests for legal aid, he was
beaten up by police officers Z. and V. They pressurised him to
confess to the above-mentioned crimes. The applicant attempted to
commit suicide but, as it appears, was promptly provided with medical
assistance. It does not appear that this incident had any adverse
consequences on his health.
- Following
the arrest the applicant remained in detention.
- The Government submitted that according to the
information provided by the Supreme Court of Russia the applicant's
first documented interview took place on 18 April 2001 in the
presence of his lawyer, S.
B. The investigation into the applicant's allegations
of ill-treatment
1. The applicant's medical examination
- The
applicant complained about the ill-treatment to the police and to a
local prosecutor's office.
- It appears that the prosecutor's office did not take
any steps in connection with the applicant's complaints, other than
remitting the case to a police investigator, K., from the same police
station.
- On
19 April 2001 K. ordered the applicant's medical examination.
- The examination was carried out on the same date.
According to the expert's report, the applicant had a bruise of 3.5×5
cm on his back in the right lumbar region and the right temple area
was sensitive on palpation. Noting that no harm to the applicant's
health could be established, the expert concluded that the bruise
could have been inflicted at the time and in the circumstances
described by the applicant.
2. The prosecutor's first decision refusing to open a
criminal case
- By
a decision of 3 May 2001 a senior assistant to the Prosecutor of the
Buzuluk Prosecutor's Office refused to institute criminal proceedings
against police officers Z. and V. for lack of evidence of a crime.
- The decision referred to the statements of Z. and V.,
who denied the allegations of ill-treatment. Investigator K. stated
that he had ordered a medical examination in response to the
applicant's complaint and noted that the applicant had not complained
about the alleged ill-treatment to the prosecutor when the latter had
authorised his detention on remand. Finally, having regard to the
expert's report, the prosecutor concluded that he was unable to
establish any ill-treatment on the part of the police officers and
noted that the injury sustained by the applicant could have occurred
“in other circumstances”.
- The
applicant submitted that he had learned about this decision “much
later”.
- The
Government did not make any comments concerning the date of
notification of this decision to the applicant.
3. The trial court's request to the prosecutor's office
to carry out an inquiry into the alleged ill-treatment
- On
an unspecified date the applicant's criminal case concerning the
charges of theft and robbery was transferred to the Buzuluk Town
Court for examination.
- During
the court hearing of his criminal case on 9 July 2001 the applicant
repeated his allegations of ill-treatment. The two co-accused in the
applicant's case also alleged ill-treatment by the police officers.
The prosecutor participating in the examination of the case moved to
adjourn the proceedings in order to carry out an inquiry into their
submissions.
- By
a decision of the same date the trial court entrusted the Buzuluk
Prosecutor with the inquiry and adjourned the proceedings.
4. The second decision refusing to institute criminal
proceedings
- On 27 July 2001 the Senior Assistant to the Prosecutor
of the Buzuluk Prosecutor's Office refused to institute criminal
proceedings against the police officers, referring, among other
things, to the oral evidence given by police officers V. and Z. and
investigator K. as well as to the previous decision of 3 May 2001.
- The
applicant stated that he was not notified about the decision
immediately.
- The
Government submitted that the decision had been read aloud during the
court hearing of 7 August 2001.
5. The judicial review of the decisions of the
prosecutor's office
- The
applicant complained about the decisions of the prosecutor's office
to the Buzuluk Town Court, alleging that they were unfounded and that
several witnesses of the ill-treatment had not been questioned, and
requested an additional inquiry.
- By
a judgment of 23 October 2001 the court rejected his complaint. In
particular, it stated that:
“... The plaintiff's submissions proved
unconfirmed during the court hearing. According to the statements of
the police officers V. and Z. obtained in course of the prosecutor's
inquiry into the alleged ill-treatment, Dmitrachkov [the applicant]
was detained on suspicion of robbery and theft, no physical or
psychological pressure was exerted on him ... Dmitrachkov failed to
complain to the prosecutor who ... authorised his arrest although he
had the opportunity ...
... According to the plaintiff, upon his placement in
the isolation ward, he was hit with his head against the walls.
However, his co-accused Ch. did not confirm this allegation.
The expert's opinion of 19 April 2001 revealed an
injury, [namely,] a bruise in the left lumbar region. No injuries to
the head were established ... which refutes the [plaintiff's]
allegations of ill-treatment following his arrest.
In these circumstances the court considers that the
decisions [...] of [...] 3 May 2001 refusing to institute criminal
proceedings against Z. and V. and [...] of 27 July 2002 [...] are
lawful and that there are no reasons to quash them.”
- The
applicant appealed.
- By
a decision of 16 April 2002 the Orenburg Regional Court held that the
trial court had examined the case under the rules of civil procedure
whereas the complaints against the investigative measures ought to
have been examined under the provisions of the criminal procedure. It
quashed the first-instance judgment and terminated the proceedings
without examining the substance of the applicant's complaints.
- In
response to the Court's request for copies of the investigation file
in respect of the events of 16 April 2001, the Government submitted
that the file had been destroyed due to the expiry of the time-limit
for its storage. The Government referred to an Instruction dated 28
December 1998 issued by the Prosecutor General's office.
C. The
applicant's conviction
- By
a judgment of 4 December 2001 the Buzuluk Town Court convicted the
applicant of robbery and theft and sentenced him to ten years of
imprisonment and confiscation of his property. The applicant submits
that he received a copy of the judgment on 27 March 2002. In the
judgment, the trial court specifically rejected the applicant's
allegations of ill-treatment as unfounded without contesting the
existence of his injuries or providing any explanation for their
origin. The trial court referred to the decision of 27 July 2001
without questioning the witnesses mentioned in that decision in
court.
- On
21 May 2002 the Orenburg Regional Court upheld the judgment on
appeal.
- Both
courts referred to the conclusions of the prosecutor's inquiries into
the alleged ill-treatment and rejected the applicant's submissions in
this connection.
II. RELEVANT DOMESTIC LAW
- Article 117 § 2 (f) of the Criminal Code of the
Russian Federation makes acts of torture punishable by up to seven
years' imprisonment. Under Article 286 § 3 (a) and (c) abuse of
an official position associated with the use of violence or entailing
serious consequences carries a punishment of up to ten years'
imprisonment.
- Before
1 July 2002, criminal proceedings in Russia were governed by the 1960
Code of Criminal Procedure of the RSFSR (“the old CCP”).
Under Article 113 of the old CCP, a refusal to open criminal
proceedings could be appealed against to a prosecutor or a court.
Under Article 220, a refusal by the prosecutor could be appealed
against to a higher prosecutor.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that he had been subjected to ill-treatment by
police officers during his detention between 16 and 18 April 2001 and
that the domestic authorities failed to investigate the matter
properly. The Court finds it appropriate to examine the complaint
under Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
- The
Government maintained that the applicant had not instituted any
proper court proceedings against the decisions of the prosecutor's
office dated 3 May 2001 and 27 July 2001 under Article 113 of the old
CCP and thus failed to exhaust the available domestic remedies.
- The
applicant disagreed, having submitted that in view of the
circumstances of his case any further complaints would have been
ineffective.
- The
Court notes that under Article 113 of the old CCP the decisions
referred to by the Government could indeed have been appealed against
either to a prosecutor or to a court. The Court further observes that
although a court itself had no competence to institute criminal
proceedings, its power to annul a refusal to institute criminal
proceedings and indicate the defects to be addressed appears to be a
substantial safeguard against the arbitrary exercise of powers by the
investigating authority (see Trubnikov v. Russia (dec.), no.
49790/99, 14 October 2003). The Court remains unconvinced, however,
that in the circumstances of the present case the applicant can be
said to have failed to exhaust domestic remedies, as required by
Article 35 § 1 of the Convention.
- The
Court notes that by a decision of 3 May 2001 the Buzuluk Prosecutor's
Office examined the applicant's allegations of ill-treatment and
refused to institute criminal proceedings against police officers Z.
and V. for lack of evidence of a crime. It does not appear that the
applicant brought any court proceedings in respect of this decision.
After the applicant's criminal case concerning the charges of theft
and robbery was transferred to the Buzuluk Town Court for
examination, the applicant complained about the ill-treatment at the
hands of the police officers before the trial court. In response, on
9 July 2001 the trial court entrusted the Buzuluk Prosecutor with the
inquiry and adjourned the proceedings. On 27 July 2001 the Buzuluk
Prosecutor's Office refused to institute criminal proceedings against
the police officers, referring, among other things, to the previous
decision of 3 May 2001. Thereafter the proceedings in the applicant's
criminal case resumed and on 4 December 2001 the Buzuluk Town Court
convicted the applicant as charged, having specifically rejected the
applicant's allegations of ill-treatment as unfounded with reference
to the decision of 27 July 2001. This judgment was later upheld by
the Orenburg Regional Court on appeal.
- Regard
being had to the fact that the second examination of the applicant's
complaints about the alleged ill-treatment had been ordered, examined
and accepted by the trial court and later reviewed by the appeal
court within the framework of the criminal case in which he took part
as a defendant, the Court finds that the applicant made the domestic
courts sufficiently aware of his grievances in respect of the alleged
ill-treatment episode. The Court is of the view that the courts had
been given an ample opportunity to exercise their power to annul a
refusal to institute criminal proceedings and indicate the defects to
be addressed. In such circumstances, the Court is unconvinced that
having additional recourse to the procedure under Article 113 of the
old CCP would have made any difference and yielded a different result
from the one obtained by the applicant in this respect in the main
set of criminal proceedings against him. Accordingly, the Court
rejects the Government's objection.
- The Court finds this part of the application is not
manifestly illfounded within the meaning of Article 35 § 3
of the Convention. It further notes that it is not inadmissible on
any other grounds. It must therefore be declared admissible.
B. Merits
- The
Government submitted that the applicant's allegations of
illtreatment had been thoroughly examined by the domestic courts
at two instances in the course of the criminal proceedings against
the applicant and reasonably rejected as unfounded.
- The
applicant maintained his complaints.
1. Alleged ill-treatment in police custody
-
The Court has held on many occasions that the authorities have an
obligation to protect the physical integrity of persons in detention.
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, § 34,
Series A no. 336; see also, mutatis mutandis, Salman v.
Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII). Otherwise,
torture or ill-treatment may be presumed in favour of the claimant
and an issue may arise under Article 3 of the Convention (see Tomasi
v. France, 27 August 1992, §§ 108-11, Series A no. 241
A, and Selmouni v. France [GC], no. 25803/94, § 87, ECHR
1999-V). The Court further recalls that, while it is sensitive to the
subsidiary nature of its role and cautious about taking on the role
of a firstinstance tribunal of fact, it is nevertheless not
bound by the findings of domestic courts and may depart from them
where this is rendered unavoidable by the circumstances of a
particular case (see, for example, Matyar v. Turkey, no.
23423/94, § 108, 21 February 2002 and, by contrast, Edwards
v. the United Kingdom, 16 December 1992, § 34, Series A
no. 247 B, and Vidal v. Belgium, 22 April 1992, §§
33 and 34, Series A no. 235 B).
-
The Court notes that the parties did not dispute the validity of the
medical report drawn up on 19 April 2001, immediately following the
applicant's arrest and detention between 16 and 18 April 2001, and
confirming the presence of various injuries to his head and back. The
Government were accordingly under an obligation to provide a
plausible explanation of how the applicant's injuries had been
caused.
-
At the outset the Court observes that the applicant's allegations of
illtreatment were examined first by the domestic authorities in
the criminal proceedings against the applicant in the judgment of 4
December 2001, as upheld on 21 May 2002, and also in the course of
the preliminary checks conducted upon the applicant's complaints by
the decisions of the Buzuluk Prosecutor's office of 3 May and 27 July
2001.
-
The Court observes that the authorities accepted the validity of the
medical report of 19 April 2001 and thus the existence of the
applicant's injuries. The applicant's allegations of ill-treatment
were rejected essentially with reference to the lack of a causal link
between the applicant's injuries and the actions of the policemen and
the lack of further evidence implicating the policemen. The Court
notes that the medical report at issue was drawn up by the doctor
shortly after the events at issue and there is nothing in the case
file or the parties' submissions to suggest that the injuries
described in the report had been inflicted either before the
applicant's arrest on 16 April 2001 or in the period from his release
to the medical examination of 19 April 2001.
47. On
the basis of all the material placed before it, the Court finds that
neither the authorities at the domestic level nor the Government in
the proceedings before the Strasbourg Court have advanced any
convincing explanation as to the origin of the applicant's injuries
(see, by contrast, Klaas v. Germany, 22 September 1993, §§
29-31, Series A no. 269). The Court concludes therefore that the
Government have not satisfactorily established that the applicant's
injuries were caused otherwise than - entirely, mainly, or partly -
by the treatment he underwent while in police custody (see the
Ribitsch, cited above, § 34).
- As
to the seriousness of the acts of ill-treatment, the Court reiterates
that in order to determine whether a particular form of ill-treatment
should be qualified as torture, it must have regard to the
distinction, embodied in Article 3, between this notion and that of
inhuman or degrading treatment. It appears that it was the intention
that the Convention should, by means of this distinction, attach a
special stigma to deliberate inhuman treatment causing very serious
and cruel suffering. The Court has previously had before it cases in
which it has found that there has been treatment which could only be
described as torture (see Aksoy v. Turkey, 18 December 1996, §
64, Reports of Judgments and Decisions 1996-VI; Aydın
v. Turkey, 25 September 1997, §§ 83 and 84 and 86,
Reports 1997 VI; Selmouni, cited above, §
105; Dikme v. Turkey, no. 20869/92, §§ 94-96, ECHR
2000-VIII; and, among recent authorities, Batı and Others v.
Turkey, nos. 33097/96 and 57834/00, § 116, ECHR 2004 ...
(extracts), as well as Menesheva v. Russia, no. 59261/00, §
55, ECHR 2006 ...).
49. Furthermore,
the Court reiterates its well-established
case-law that in
respect of a person deprived of his liberty, any recourse to physical
force which has not been made strictly necessary by his own conduct
diminishes human dignity and is in principle an infringement of the
right set forth in Article 3 of the Convention. It observes that the
requirements of an investigation and the undeniable difficulties
inherent in the fight against crime cannot justify placing limits on
the protection to be afforded in respect of the physical integrity of
individuals (see Tomasi, §
115, and Ribitsch,
§§ 38-40, both cited above).
- Turning
to the circumstances of the present case the Court reiterates that,
as follows from the applicant's description of the treatment he was
subjected to, and the medical information in the case-file, the
beatings complained of led to a bruise on his back in the right
lumbar region and to the fact that his right temple area was
sensitive to palpation which, however, did not lead to the
establishment of any harm to the applicant's health (see § 13
above). Although the Court has found this unacceptable treatment to
be deliberate it does not consider that it caused such serious
injuries or suffering or was of such a cruel nature that it should be
characterised as torture within the meaning of Article 3 of the
Convention. Thus, the Court concludes that, taken as a whole, the
ill-treatment amounted to inhuman treatment within the meaning of
that provision.
51. Accordingly,
there has been a breach of Article 3 of the Convention.
2. Alleged failure to carry out an effective
investigation
(a) General principles
- The
Court reiterates that 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. As with an investigation under Article 2, 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 Jasar v. the former Yugoslav Republic of Macedonia,
no. 69908/01, § 55, 15 February 2007; Matko v. Slovenia,
no. 43393/98, § 84, 2 November 2006; Assenov and Others
v. Bulgaria, 28 October 1998, § 102, Reports
1998 VIII; and Labita v. Italy [GC], no. 26772/95, §
131, ECHR 2000-IV).
- The
minimum standards of “effectiveness” defined by the
Court's case-law also require that the investigation must be
independent, impartial and subject to public scrutiny, and that the
competent authorities must act with exemplary diligence and
promptness (see Isayeva and Others v. Russia, nos.
57947/00, 57948/00 and 57949/00, §§ 208-13, 24 February
2005, and Menesheva, cited above, § 67).
(b) Application of the above principles in
the present case
- The
Court notes that the parties did not dispute the validity of the
medical report drawn up on 19 April 2001, immediately following the
applicant's arrest and detention between 16 and 18 April 2001, and
confirming the presence of various injuries to the applicant's head
and back. The Court further observes that the matter was duly brought
before the competent authorities at a time when they could reasonably
be expected to investigate the circumstances in question. The
applicant's allegations, which were detailed and consistent
throughout the domestic proceedings and before this Court, were, at
least to some extent, corroborated by a medical certificate recording
an injury to the head and back. The domestic authorities were
therefore under an obligation to conduct an effective investigation
satisfying the above requirements of Article 3 of the Convention.
-
In this connection the Court notes that the prosecution authorities,
who were made aware of the applicant's ill-treatment, carried out a
preliminary investigation which did not result in criminal
prosecution. The applicant's ill-treatment complaints were also the
subject of examination by the domestic courts at two levels of
jurisdiction. In the Court's opinion, the issue is consequently not
so much whether there was an investigation, since the parties did not
dispute that there was one, but whether it was conducted diligently,
whether the authorities were determined to identify and prosecute
those responsible and, accordingly, whether the investigation was
“effective”.
- The
Court reiterates that the applicant was entirely reliant on the
prosecutor to gather the evidence necessary to corroborate his
complaint. The prosecutor had the legal power to interview the police
officers, summon witnesses, visit the scene of the incident, collect
forensic evidence and take all other crucial steps for the purpose of
establishing the truth of the applicant's account.
- The
Court will therefore assess the thoroughness of the investigation. In
this connection the Court notes a number of significant omissions
capable of undermining its reliability and effectiveness. Firstly,
the Court observes that there was a selective
and somewhat inconsistent approach to the assessment of evidence by
the investigating authorities. The prosecution authorities did not
consider that testimony to be credible, apparently because it
reflected a personal opinion and constituted an accusatory tactic by
the applicant. However, the investigator did regard the police
officers' testimonies as credible, despite the fact that their
statements could have constituted defence tactics and have been aimed
at damaging the applicant's credibility. In the Court's view, the
prosecution investigation applied different standards when assessing
the testimonies, as that given by the applicant was deemed to be
subjective,
but not those given by the police officers. The credibility of the
latter testimonies should also have been questioned, as the
prosecution investigation was supposed to establish whether the
officers were liable on the basis of disciplinary or criminal charges
(see Ognyanova and Choban v.
Bulgaria, no. 46317/99, § 99,
23 February 2006).
- Secondly,
the Court finds it striking that the investigator did not identify
any witnesses who were not police personnel. While the
investigating authorities may not have been provided with the names
of individuals who might have seen the applicant at the police
station or might have witnessed his alleged ill-treatment, they were
expected to take steps on their own initiative to identify possible
eyewitnesses. In particular, the prosecution authorities could have
at least questioned lawyer S. who, as it follows from the information
submitted by the Government, represented the applicant during the
interview of 18 April 2001 (see paragraph 9). The Court therefore
finds that the investigating authorities' failure to look for
corroborating evidence and their deferential attitude to the police
officers must be considered to be a particularly serious shortcoming
in the investigation (see Aydın, cited above, §
106).
- Thirdly,
the prosecutor did not launch an investigation after being notified
of the alleged ill-treatment. Instead he remitted the applicant's
complaint to the local police station, a State authority whose
employees were allegedly implicated in the events which were to be
looked into, with an order to conduct an official police inquiry (see
paragraph 11 above). While the Court acknowledges the necessity of
internal inquiries by the police with a view to possible disciplinary
sanctions in cases of alleged police abuse, it finds it striking that
in the present case the initial investigative steps, which usually
prove to be crucial for the establishment of the truth in cases of
police brutality, were conducted by the police force itself (see, for
similar reasoning, Vladimir Fedorov v. Russia,
no. 19223/04, § 69, 30 July 2009). In this connection the
Court reiterates its finding made on a number of occasions that the
investigation should be carried out by competent, qualified and
impartial experts who are independent of the suspected perpetrators
and the agency they serve (see Ramsahai and Others v. the
Netherlands [GC], no. 52391/99, § 325, ECHR 2007 ...,
and Oğur v. Turkey [GC], no. 21594/93, §§
91-92, ECHR 1999 III). Furthermore, the Court would stress that
it is not convinced that, despite relying on the police officers'
statements in the decisions of 3 May and 27 July 2001 (see paragraphs
15 and 21), the assistant prosecutor had heard evidence from them in
person. It appears that he merely recounted the officers' statements
made during the internal inquiry. The Court, however, is mindful of
the important role which investigative interviews play in obtaining
accurate and reliable information from suspects, witnesses and
victims and, ultimately, the discovery of the truth about the matter
under investigation. Observing the suspects', witnesses' and victims'
demeanour during questioning and assessing the probative value of
their testimony forms a substantial part of the investigative
process.
- Finally,
as regards the judicial proceedings pertaining to the applicant's
appeals against the prosecution decisions, the Court finds it
striking that neither the trial nor the appeal courts manifested any
interest in identifying and personally questioning witnesses of the
applicant's alleged ill-treatment or hearing evidence from the
officers involved in the incidents (see Zelilof v. Greece, no.
17060/03, § 62, 24 May 2007, and Osman v. Bulgaria,
no. 43233/98, § 75, 16 February 2006). For the Court, this
unexplained shortcoming in the proceedings deprived the applicant of
an opportunity to challenge effectively the alleged perpetrators'
version of the events (see Kmetty v. Hungary, no. 57967/00, §
42, 16 December 2003).
- Having
regard to the above failings of the Russian authorities, the Court
considers that the investigation carried out into the applicant's
allegations of ill-treatment was not thorough, adequate or effective.
- There
has accordingly been a violation of Article 3 of the Convention under
its procedural limb.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
as regards the complaints about the alleged general unfairness of the
criminal proceedings against him, having regard to the materials in
its possession, the Court finds that they have not been sufficiently
made out and 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 should be rejected pursuant
to Article 35 §§ 1 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
-
The applicant claimed compensation of 1,000,000 Russian roubles (RUB)
for damage.
- The
Government argued that the claims were unsubstantiated and in any
event unrelated to any damage allegedly inflicted.
- The
Court observes that it has found above that the authorities subjected
the applicant to inhuman treatment, in breach of Article 3 of the
Convention. Under this provision it has also found that there was no
effective investigation in respect of the events of 16 April 2001.
Having regard to the seriousness of the violations of the Convention
as well as to its established case-law (see Mikheyev v. Russia,
no. 77617/01, § 163, 26 January 2006, and Selmouni,
cited above, § 123), the Court awards the applicant 12,000 euros
(EUR) for non-pecuniary
damage, plus any tax that may be chargeable on that amount.
B. Costs and expenses
- The
applicants claimed RUB 15,000 for legal costs incurred during the
domestic proceedings, RUB 10,000 in respect of legal costs incurred
in the proceedings before the Court and RUB 50,000 for translation,
fuel and postal expenses allegedly incurred during the Strasbourg
proceedings.
- The
Government accepted the applicant's claim for legal and translation
expenses in the amount of RUB 26,433. They contested the
remainder of the claims as unsubstantiated.
- 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. Having regard to the material in its
possession, the Court considers it reasonable to award the applicant
the sum of EUR 400 for the legal and translation expenses incurred in
relation to the proceedings before the Court, plus
any tax that may be chargeable to the applicant on the above amounts.
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 complaints concerning the
applicant's ill-treatment by police officers during his detention
between 16 and 18 April 2001 and the domestic authorities' failure to
investigate the matter admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of both
the substantive and procedural aspect of Article 3 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final according to
Article 44 § 2 of the Convention, the following amounts, to
be converted into Russian roubles at the rate applicable at the date
of settlement:
(i) EUR
12,000 (twelve thousand euros) in respect of non pecuniary
damage;
(ii) EUR
400 (four hundred euros) in respect of costs and expenses;
(iii) any
tax that may be chargeable to the applicant on the above amounts;
(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 applicant's claim
for just satisfaction.
Done in English, and notified in writing on 16 September 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
