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FIRST
SECTION
CASE OF FILATOV v. RUSSIA
(Application
no. 22485/05)
JUDGMENT
STRASBOURG
8
November 2011
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 Filatov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Peer
Lorenzen,
Elisabeth Steiner,
Khanlar
Hajiyev,
Mirjana Lazarova Trajkovska,
Julia
Laffranque, judges,
and Søren Nielsen,
Section Registrar,
Having
deliberated in private on 18 October 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 22485/05)
against the Russian Federation lodged with the Court
under Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”) by a
Russian national, Mr Yevgeniy Mikhaylovich Filatov (“the
applicant”), on 24 May 2005.
2. The Russian Government (“the
Government”) were represented by Mr G. Matyushkin,
the Representative of the Russian Federation at the European Court of
Human Rights.
3. The
applicant alleged, in particular, that he had been ill-treated
while in State custody and that the domestic authorities had failed
to investigate the above incident.
- On
20 March 2009 the President of the First Section
decided to give notice of the application to the Government. It was
also decided to rule on the admissibility and merits of the
application at the same time (former Article 29 § 3 of the
Convention).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1964 and is currently
serving a sentence of imprisonment in a penal establishment in
Irkutsk.
1. Applicant’s arrest, alleged ill-treatment and
investigation thereof
- On
28 November 2002 at 7.30 a.m. the police arrived at the applicant’s
flat, arrested him and took him to the Pervorechenskiy District
police station of Vladivostok (Первореченский
РУВД
г. Владивостока)
to question him about his suspected involvement in the murder of
a certain P. on 26 November 2002.
- According to the applicant, the questioning continued
for twenty-four hours at a stretch and was accompanied by severe
beatings. The police officers allegedly handcuffed the applicant to a
chair, put a cloth bag with a stranglehold on his head and started
suffocating him and beating him at the same time on his head with
heavy folders, after which he fainted. When he regained consciousness
the beatings continued. The police officers slapped him on his ears
and shouted in his ears. After that they put a plastic bag on top of
the cloth bag and continued suffocating him and beating him.
Following another loss of consciousness the police officer tortured
the applicant with an electric current, during which he again fainted
several times. Each time the applicant fainted, the police officers
poured water over him to make him come to his senses. The applicant
also alleged that a certain T. and K. had participated in the
beatings.
- According to the applicant, at 7 a.m. on 29 November
2002 the investigator took him to an administrative arrest cell
(камера
административно
задержанных).
However, the officer on duty allegedly refused to admit the applicant
in view of his injuries.
- At about 12 noon on 29 November 2002 the applicant was
taken for forensic medical examination.
- Having examined the applicant, the forensic medical
expert found numerous injuries on his body (forensic expert report
no. 5663): bruises on the superior and inferior eyelids of both eyes
measuring 7 by 6 cm and 6 by 5 cm respectively, on the right
cheekbone measuring 6 by 4 cm; on the forehead measuring 4 by 3 cm,
on the left auricle measuring 4 by 3 cm, in the right parotid area
measuring 3 by 4 cm, on the neck measuring 5 by 4 cm, on the
applicant’s right shoulder blade measuring 5 by 4 cm, in the
infrascapular and lumbar regions measuring 4 by 3 cm and 3 by 2 cm
respectively, on the left shoulder joint measuring 8 by 7 cm, in his
right underarm area measuring 8 by 6 cm and 6 by 4 cm and on his
stomach measuring 6 by 4 cm. The expert also recorded two abrasions
on the left side of the applicant’s forehead measuring 2 by 0.2
cm and 1.7 by 0.2 cm, and multiple abrasions on the applicant’s
left forearm and hand measuring from 0.9 by 0.7 cm to 0.5 by 0.3 cm.
The expert concluded that the injuries were approximately one day
old, and that the bruises could have been caused by a blow from a
hard, blunt object and the abrasions by a hard object with a rough
surface or with a sharp edge. The report went on to say that the
injuries in question had not caused any harm to the applicant’s
health.
- The applicant was subsequently taken to the temporary
detention ward, from where he was released on 3 December 2002 under a
written undertaking not to leave his place of residence.
- From 5 December to 23 December 2002 the applicant
underwent in-patient hospital treatment for brain concussion,
thoracic spine contusion and multiple soft-tissue bruises.
- On 17 December 2002 the applicant complained about the
alleged beatings to the Primorye Regional Prosecutor’s Office.
His complaint contained a detailed account of the alleged
ill-treatment.
- On 20 December 2002 the applicant was questioned about
the circumstances of the alleged beatings.
- On 30 January 2003 the chief investigator of the
Pervorechenskiy District Prosecutor’s Office of Vladivostok
refused to initiate criminal proceedings in the absence of an
indication that a crime had been committed. The decision was based on
statements by police officers B., V., P. and Yel. and investigator
P., who denied having applied any physical force against the
applicant or having seen anybody else using violence against him.
Police officers B. and V. further submitted that they had seen
abrasions on the applicant’s face and hands and that the
applicant had explained that he had received them on 26 November 2002
in a brawl with four unknown teenagers. Police officer Yel. further
submitted that on 28 November 2002, at the police station, the
applicant had threatened to have criminal proceedings instituted
against the police officers, after which he had intentionally hit the
right side of his head against the door frame.
- On 30 April 2003 the supervising prosecutor quashed
the above mentioned decision and ordered an additional inquiry,
which would require, inter alia, the questioning of a certain
T. who, according to the applicant, had also participated in the
beatings, the questioning of the officer on duty who had refused to
admit the applicant to an administrative arrest cell and the
assessment of the relevant medical evidence.
- On 20 May 2003 the chief investigator of the
Pervorechenskiy District Prosecutor’s Office of Vladivostok
again refused to initiate criminal proceedings against the police
officers. The decision relied on statements by police officers,
forensic expert report no. 5663 and statements by the applicant’s
partner and the latter’s family to the effect that they had
seen abrasions on the applicant’s forehead and hands when he
returned home in the evening of 26 November 2002.
- On 17 June 2003 the supervising prosecutor quashed the
above-mentioned decision on appeal, with an order, among other
things, to question a certain T., whom the applicant alleged to have
participated in the beatings.
- On 27 June 2003 the chief investigator of the
Pervorechenskiy District Prosecutor’s Office of Vladivostok
refused for the third time to initiate criminal proceedings against
the alleged perpetrators. The decision was made on the basis of the
evidence relied upon in the previous refusals.
- In the meantime, on 28 July 2003 the forensic medical
expert finalised an additional forensic medical report. The report
stated that the abrasions discovered on the applicant’s face,
forearm and hand during the initial forensic medical examination were
approximately one to three days old, which did not exclude the
possibility that they had been inflicted on him on 26 November
2002. The bruises could have been caused by the impact of blows by or
collision with a hard, blunt object. The abrasions had caused mild
damage to the applicant’s health, whereas the remaining
injuries had not caused any such harm. The diagnosis of “brain
concussion” had not been confirmed since the degenerative
changes in the applicant’s brain cortex, as revealed during the
CT scan performed on 19 December 2002, confirmed a long-lasting
process which had not had any connection with the events alleged by
the applicant.
- On 20 September 2003 the supervising prosecutor
quashed the decision of 27 June 2003 and ordered that the applicant
be questioned with the aim of identifying T., following which the
latter would be questioned on the circumstances alleged by the
applicant.
- On 23 September 2003 the chief investigator of the
Pervorechenskiy District Prosecutor’s Office once again took a
decision to refuse the institution of criminal proceedings. Further
to the evidence relied on previously, the above decision indicated
that, besides the police officers, no unauthorised persons had been
present at the applicant’s arrest and subsequent questioning.
- On 6 November 2003 the supervising prosecutor quashed
the above mentioned decision, finding that it was necessary to
question K., who, as alleged by the applicant, had also participated
in the beatings.
- On 17 November 2003 the chief investigator of the
Pervorechenskiy District Prosecutor’s Office took the decision
for the fifth time to refuse the institution of criminal proceedings
against the police officers. In the course of the additional inquiry
which led to the refusal, K. was identified and questioned, yet he
denied his alleged participation in the investigation and the
applicant’s beatings.
- On 24 June 2004 the supervising prosecutor quashed
that decision and entrusted an additional investigation to another
chief investigator of the Pervorechenskiy District Prosecutor’s
Office.
- On 27 June 2004 it was decided, yet another time, to
refuse the institution of criminal proceedings against the police
officers. The decision summarised the history of the previous
decisions, endorsed the same arguments and contained no new evidence.
- On 12 October 2004 the supervising prosecutor quashed
that decision and ordered an additional inquiry. The decision in
question indicated, among other things, that the version of events
according to which the applicant had allegedly sustained the injuries
in question as a result of a brawl with unidentified teenagers had
been disproved by the conclusion of the (initial) forensic medical
expert to the effect that the injuries discovered on the applicant’s
body were approximately one day old and by the statements of the
applicant’s partner. The decision further indicated the need to
question police officer Yel. and other police officers about the
circumstances of the applicant’s alleged self-harm, and to
adduce evidence as to the time of the applicant’s arrest, his
being brought to the police station and to the administrative arrest
cell, and the time of his release.
- On 18 October 2004 the chief investigator refused to
initiate criminal proceedings for the seventh time. No attempt was
made to explain the discrepancy between the (initial) conclusions of
the medical expert as to the assessment of the applicant’s
injuries and the version of events advanced to the effect that the
injuries had been inflicted on the applicant on 26 November 2002
by unknown young people.
- On an unspecified date the above-mentioned decision
was quashed by the supervising prosecutor and an additional inquiry
was ordered. The inquiry was entrusted to the Sovetskiy District
Prosecutor’s Office of Vladivostok.
- On 19 May 2006 the chief investigator of the Sovetskiy
District Prosecutor’s Office also refused to initiate criminal
proceedings for lack of evidence of a crime in the actions of the
police officers. The decision relied on statements by police officers
who had denied using violence against the applicant, statements by
the applicant’s partner and the latter’s relatives who
had confirmed having seen the applicant returning home on 26 November
2002 with bleeding abrasions on his face and hands, and the results
of both forensic medical examinations. It was noted in the decision
that the injuries found on the applicant’s body had not caused
any harm to his health and that, as had been confirmed by the
forensic medical expert (see paragraph 20 above), they could
have been inflicted on 26 November 2002, that is, prior to the
applicant’s having been taken to the police station.
- In June 2009 the applicant applied to the Sovetskiy
District Court of Vladivostok, seeking to challenge the refusal of
19 May 2006. However, on 17 June 2009 the Sovetskiy District
Court returned the applicant’s claim without examination,
citing an out-of-time appeal as the reason for such a decision. The
decision in question, open to appeal, was not appealed against by the
applicant.
2. Alleged stealing of the applicant’s belongings
- The applicant alleged that while he was undergoing
hospital treatment for his injuries, a certain K. had stolen a TV set
and a VCR from his flat.
- The applicant sought to have criminal proceedings
initiated against the alleged perpetrator. However, on 19 May
2006 the chief investigator of the Sovetskiy District Prosecutor’s
Office in Vladivostok refused his request, finding no indication that
a crime had been committed.
3. Applicant’s conviction
- On 12 April 2004 the Primorye Regional Court convicted
the applicant of aggravated murder, robbery and stealing an official
document and sentenced him to nineteen years’ imprisonment.
- On 8 December 2004 the Supreme Court of Russia
excluded the stealing of an official document from the qualification
of the applicant’s offence, in view of the time-bar in respect
of this charge, and reduced the sentence to eighteen years’
imprisonment.
II. RELEVANT DOMESTIC LAW
A. Criminal Code
- Abuse of office associated with the use of violence or
entailing serious consequences carries a punishment of up to ten
years’ imprisonment (Article 286 § 3 of the Criminal
Code).
B. Code of Criminal Procedure
- The Russian Code of Criminal Procedure (Law no. 174-FZ
of 18 December 2001, in force from 1 July 2002 - “the
CCrP”) states that a criminal investigation may be initiated by
an investigator or prosecutor on a complaint by an individual
(Articles 140 and 146). Within three days of receipt of such a
complaint, the investigator or prosecutor must carry out a
preliminary inquiry and make one of the following decisions: (1) to
open criminal proceedings if there are reasons to believe that a
crime has been committed; (2) to decline to open criminal proceedings
if the inquiry reveals that there are no grounds to initiate a
criminal investigation; or (3) to refer the complaint to the
competent investigative authority. The complainant must be notified
of any decision taken. The decision not to open criminal proceedings
is amenable to appeal to a higher prosecutor or a court of general
jurisdiction (Articles 144, 145 and 148).
- The CCrP provides for judicial review of a decision or
(in)action on the part of an inquirer, investigator or prosecutor
which has affected constitutional rights or freedoms. The judge is
empowered to verify the lawfulness and reasonableness of the
decision/(in)action and to grant the following forms of relief: (1)
to declare the impugned decision/(in)action unlawful or unreasonable
and to order the respective authority to remedy the violation; or (2)
to reject the complaint (Article 125).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that on 28 and
29 November 2002 he had been beaten up by the police and that
the investigation into his respective complaint had been ineffective.
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.”
A. Admissibility
- 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
1. Submissions by the parties
- Referring
to the results of the inquiries conducted by the investigating
authorities into the applicant’s allegations, the Government
submitted that the applicant’s injuries had been sustained
prior to his arrest by the police, on 26 November 2002,
supposedly in a fight with unidentified young people. Accordingly,
the applicant’s allegations had been found to be groundless.
- The
applicant maintained his complaint.
2. The Court’s assessment
(a) Alleged inadequacy of the
investigation
(i) General principles
- The
Court reiterates that where an individual raises an arguable claim
that he has been seriously ill-treated in breach of Article 3,
that provision, read in conjunction with the State’s general
duty under Article 1 of the Convention to “secure to
everyone within their jurisdiction the rights and freedoms defined in
... [the] Convention”, requires by implication that there
should be an effective official investigation (see Assenov and
Others v. Bulgaria, 28 October 1998, § 102,
Reports of Judgments and Decisions 1998 VIII).
- An obligation to investigate “is not an
obligation of result, but of means”: not every investigation
should necessarily be successful or come to a conclusion which
coincides with the claimant’s account of events; however, it
should in principle be capable of leading to the establishment of the
facts of the case and, if the allegations prove to be true, to the
identification and punishment of those responsible (see Paul and
Audrey Edwards v. the United Kingdom, no. 46477/99, § 71,
ECHR 2002-II; Mahmut Kaya v. Turkey, no. 22535/93, §
124, ECHR 2000-III; and Mikheyev v. Russia, no. 77617/01,
§ 107, 26 January 2006).
- The
investigation of arguable allegations of ill-treatment must be
thorough. That means that the authorities must always make a serious
attempt to find out what happened and should not rely on hasty or
ill founded conclusions to close their investigation, or as the
basis of their decisions. They must take all reasonable steps
available to them to secure the evidence concerning the incident,
including, inter alia, a detailed statement concerning the
allegations from the alleged victim, eyewitness testimony, forensic
evidence and, where appropriate, additional medical certificates apt
to provide a full and accurate record of the injuries and an
objective analysis of the medical findings, in particular as regards
the cause of the injuries. Any deficiency in the investigation which
undermines its ability to establish the cause of injuries or the
identity of the persons responsible will risk falling foul of this
standard (see Mikheyev, cited above, § 108, and
Nadrosov v. Russia, no. 9297/02, § 38, 31 July
2008).
- The
investigation into the alleged ill-treatment must be prompt. There
must be a sufficient element of public scrutiny of the investigation
or its results; in particular, in all cases, the complainant must be
afforded effective access to the investigatory procedure (see,
Mikheyev, cited above, § 109; Maksimov v. Russia,
no. 43233/02, § 83, 18 March 2010; and Lopata
v. Russia, no. 72250/01, § 110, 13 July
2010).
- Finally,
the investigation into alleged ill-treatment by State agents should
be independent (see Öğur v. Turkey [GC],
no. 21954/93, ECHR 1999-III, §§ 91-92; Mehmet Emin
Yüksel v. Turkey, no. 40154/98, § 37, 20 July
2004; Menesheva v. Russia, no. 59261/00, § 67,
ECHR 2006 III; and Oleg Nikitin v. Russia, no. 36410/02,
§ 35, 9 October 2008).
(ii) Application of the above principles
in the present case
- It
has not been contested by the Government that on 17 December
2002 the applicant complained to the public prosecutor’s office
about the alleged beatings of 28 and 29 November 2002. The
matter was, hence, duly brought before the competent authorities at a
time when they could reasonably have been expected to investigate the
circumstances in question. The applicant’s allegations were
corroborated by reference to the results of the medical report drawn
up by the forensic medical expert on 29 November 2002,
immediately following the alleged beatings, and confirming the
presence of multiple bruises and abrasions on the applicant’s
body (see paragraph 10 above). The applicant’s claim was
therefore shown to be “arguable” and the domestic
authorities were placed 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 investigation authority,
which was made aware of the applicant’s ill-treatment, carried
out a preliminary investigation which did not result in a criminal
prosecution. 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”.
- At
first glance, the Court notes that in the period between January 2003
and May 2006 the investigation authority issued eight decisions
refusing to initiate criminal proceedings against the police
officers. Seven of the above refusals were set aside by the
supervising prosecutor because the preliminary inquiry had been found
to be incomplete and inadequate. As the Court has previously held,
the repeated remittals of a case for further investigation may
disclose a serious deficiency in the domestic prosecution system (see
Gladyshev v. Russia,
no. 2807/04, § 62, 30 July 2009, and
Alibekov v. Russia, no. 8413/02, § 61, 14 May 2009).
- The Court further notes that from 2002 to 2004 the
preliminary inquiry into the applicant’s allegations was
carried out by two different investigators of the Pervorechenskiy
District Prosecutor’s Office of Vladivostok, and that starting
from 2004 it was entrusted to an investigator of the Sovetskiy
District Prosecutor’s Office of Vladivostok. In the Court’s
view, the repeated referrals of the inquiry material from
investigator to investigator may also disclose a serious deficiency
in the domestic prosecution system, as each referral would undeniably
affect the thoroughness and promptness of the inquiry.
- Looking
more closely at the investigation conducted into the applicant’s
allegations of ill-treatment, the Court finds it striking that none
of the eight refusals to initiate criminal proceedings against the
police officers contained a full and detailed record of the injuries
discovered on the applicant after the alleged beatings - bruises,
abrasions, brain concussion, thoracic spine contusion (see paragraphs
10 and 12 above) - and, at best, contained a blank reference to the
report on the applicant’s forensic medical examination of 29
November 2002. The initial refusal to initiate criminal proceedings
did not contain any reference at all to the available medical
evidence. The Court further observes that none of the eight refusals
to initiate criminal proceedings contained any objective analysis of
the medical findings as to the origin and the time of infliction with
regard to each particular group of injuries. The Court also finds it
hard to explain why the report on the applicant’s additional
forensic medical examination, finalised already in July 2003, was not
taken into consideration by the investigation authority until 19 May
2006. At the same time, the Court cannot help but notice that the
results of this additional report were quite important to the inquiry
as they invalidated the hospital diagnosis of brain concussion,
altered the supposed time of infliction of the abrasions and reviewed
the assessment of the severity of the sustained injuries (in
particular, the abrasions, see paragraph 20 above).
- Furthermore,
the Court finds that the investigation authority routinely neglected
its duties and displayed a surprising lack of diligence, in that the
instructions of the supervising prosecutor were persistently not
complied with. In particular, the Court notes that the instruction to
identify and question a certain T., allegedly involved in the
beatings, was given on three occasions and, in any event, yielded no
result (see paragraphs 16, 18, 21 and 22 above). It does not appear
from the contents of the decisions refusing the institution of
criminal proceedings that the instruction to question the officer on
duty, who allegedly refused to admit the applicant to the
administrative arrest cell in view of the latter’s injuries, or
the instruction to assess the available medical evidence was complied
with.
- The
Court further notes that no attempt was made by the investigation
authority to address the contradictions in the evidence. For example,
the investigation authority could have carried out identification
parades in order to identify T. who had allegedly been involved in
the beatings, examinations of the police officers together with the
applicant, and K. together with the applicant, or a reconstruction of
the crime scene.
- In the light of the shortcomings identified above, the
Court concludes that the investigation into the alleged ill-treatment
was ineffective and that the domestic authorities failed to make any
meaningful attempts to bring those responsible for the ill-treatment
to account.
- There has accordingly been a violation of Article 3 of
the Convention under its procedural limb.
(b) Alleged ill-treatment of the applicant
(i) General principles
- The Court reiterates that persons in custody are in a
vulnerable position and that the authorities are under a duty to
protect their physical well-being (see Gladyshev, cited above,
§ 51; Sarban v. Moldova, no. 3456/05, § 77,
4 October 2005; and Mouisel v. France, no. 67263/01,
§ 40, ECHR 2002-IX). In respect of a person deprived of his
liberty, any recourse to physical force which has not been made
strictly necessary by his own conduct diminishes human dignity and is
in principle an infringement of the right set forth in Article 3 of
the Convention (see Sheydayev v. Russia,
no. 65859/01, § 59, 7 December 2006; Ribitsch
v. Austria, 4 December 1995, § 38, Series A
no. 336; and Krastanov v. Bulgaria, no. 50222/99,
§ 53, 30 September 2004).
- The Court further reiterates that to fall under
Article 3 of the Convention ill-treatment must attain a minimum level
of severity. The standard of proof relied upon by the Court is that
“beyond reasonable doubt” (see Avşar v. Turkey,
no. 25657/94, § 282, ECHR 2001-VII). Such proof may
follow from the coexistence of sufficiently strong, clear and
concordant inferences or of similar unrebutted presumptions of fact.
Where the events in issue lie wholly or in large part within the
exclusive knowledge of the authorities, as in the case of persons
within their control in custody, strong presumptions of fact will
arise in respect of injuries occurring during such detention. Indeed,
the burden of proof may be regarded as resting on the authorities to
provide a satisfactory and convincing explanation (see Gladyshev,
cited above, § 52; Oleg Nikitin, cited above,
§ 45; and Salman v. Turkey [GC], no. 21986/93,
§ 100, ECHR 2000-VII).
- Where
domestic proceedings have taken place, it is not the Court’s
task to substitute its own assessment of the facts for that of the
domestic courts and, as a general rule, it is for those courts to
assess the evidence before them (see Klaas v. Germany,
22 September 1993, § 29, Series A no. 269).
Although the Court is not bound by the findings of the domestic
courts, in normal circumstances it requires cogent elements to lead
it to depart from the findings of fact reached by those courts (see
Matko v. Slovenia, no. 43393/98, § 100, 2 November
2006). The Court must apply a particularly thorough scrutiny where
the applicant raises an arguable complaint of ill-treatment (see
Ribitsch, cited above, § 32, and Avşar,
cited above, § 283).
(ii) Application of the above principles
in the present case
- Turning to the facts of the present case, the Court
notes that immediately after the alleged beatings, on 29 November
2002, the forensic medical expert discovered multiple bruises on the
applicant’s face, head, neck, back and stomach, and multiple
abrasions on his forehead, left forearm and hand (see paragraph 10
above). Following the applicant’s release from police custody,
from 5 December to 23 December 2002 he underwent in-patient hospital
treatment for the above injuries. The hospital diagnosis also
included brain concussion and thoracic spine contusion (see paragraph
12 above).
- The
Court considers that the above medical evidence, together with the
fact that the alleged beatings took place while the applicant was
within the authorities’ control in custody, created an
unrebutted presumption of fact that the applicant was subjected to
ill-treatment at the hands of State agents and required the
Government to provide a satisfactory and convincing explanation as to
how those injuries could have originated.
- The
Court observes that, having conducted a police inquiry, the
investigation authority arrived at the conclusion that the injuries
had been inflicted on the applicant on 26 November 2002, that
is, before he had been taken to the police station, supposedly in a
fight with unidentified young people (see paragraph 30 above).
- The
Court notes, however, that the conclusion of the domestic authorities
in this respect sits ill with the medical evidence and witness
statements. According to the statements given by the applicant’s
partner and the latter’s relatives, they saw the applicant
return home on 26 November 2002 with bleeding abrasions on his
face and hands. The additional forensic medical expert report of
28 July 2003 confirmed that the abrasions found on the
applicant’s body could have been caused one to three days prior
to his examination on 29 November 2002 (see paragraph 20 above).
On the contrary, as regards the multiple bruises of considerable
sizes, the witnesses in question did not confirm having seen them on
the applicant prior to his arrest by the police. The time of the
infliction of the bruises in question was determined by the forensic
medical expert as one day prior to the applicant’s examination
on 29 November 2002 (see paragraph 10 above). In such
circumstances, therefore, the origin of the bruises discovered on the
applicant immediately after his alleged beatings by the police
officers, cannot be considered to have been properly accounted for.
- Regard
being had to the absence of any consistent and indisputable proof
supporting the account of events put forward by the domestic
authorities, the Court finds it established to the standard of proof
required in Convention proceedings that the bruises on the
applicant’s body were the result of the treatment about which
he complained and for which the Government bore responsibility.
- Accordingly, having regard to the nature and the
extent of the applicant’s injuries, the Court concludes that
the State is responsible under Article 3 on account of the inhuman
and degrading treatment to which he was subjected on 28 and
29 November 2002 by police officers of the Pervorechenskiy
District Prosecutor’s Office of Vladivostok.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant further complained under Article 6 of
the Convention of a violation of his rights in the course of the
criminal proceedings against him and under Article 8 of the
Convention of a violation of his right to respect for his private and
family life and his home.
- However,
having regard to all the material in its possession, and in so far as
these complaints fall within its competence, the Court finds that
there is no 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 manifestly ill-founded, pursuant
to Article 35 §§ 3 (a) 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 in respect of
non-pecuniary damage, the amount of which would correspond to the
standards and the practice of the Court.
- The
Government submitted that if the Court were to find a violation, the
finding of such a violation would constitute in itself sufficient
just satisfaction.
- The
Court notes that it has found a violation under both the substantive
and procedural heads of Article 3 of the Convention on account of the
applicant’s ill-treatment whilst in State custody and the
failure to carry out an effective investigation into the matter. In
these circumstances, the Court considers that the suffering and
frustration caused to the applicant cannot be compensated for by a
mere finding of a violation. Making its assessment on an equitable
basis, the Court awards the applicant 18,000 euros (EUR) in
respect of non-pecuniary damage, plus any tax that may be chargeable
on it.
B. Costs and expenses
- The applicant did not claim costs and expenses.
Accordingly, there is no call to make an award under this head.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares admissible the complaint under Article
3 and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
3 of the Convention under its substantive and procedural limbs on
account of the applicant’s ill-treatment on 28 and 29 November
2002;
- 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 18,000
(eighteen thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage, to be converted into Russian roubles
at the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points.
Done in English, and notified in writing on 8 November 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
