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FORMER
FIRST SECTION
CASE OF NIKOLAY FEDOROV v. RUSSIA
(Application
no. 10393/04)
JUDGMENT
STRASBOURG
5 April
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 Nikolay Fedorov v.
Russia,
The
European Court of Human Rights (Former First Section), sitting as a
Chamber composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 15 March 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 10393/04) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a national of Belarus, Mr Nikolay Nikolayevich
Fedorov (“the applicant”), on 30 January 2004.
- The
applicant, who had been granted legal aid, was represented by
Ms M. Samorodkina, a lawyer practising in Moscow. The
Russian Government (“the Government”) were represented by
Ms V. Milinchuk, the then Representative of the Russian
Federation at the European Court of Human Rights.
- On
21 February 2007 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 1).
- The
Government objected to the joint examination of the admissibility and
merits of the application. Having considered the Government’s
objection, the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1973 and is detained in Tver remand centre
no. 69/1.
- In
April 2003 he was taken into custody on suspicion of armed robbery.
He was detained in Smolensk remand centre no. 67/1. It appears that
the medical record indicated that the applicant had had a brain
contusion earlier in the same year.
A. Alleged ill-treatment on 20 June 2003
- At 4 p.m. on 20 June 2003 two police officers from the
Rudnyanskiy district police station (Rudnya, Smolensk Region) came to
the remand centre to take the applicant and his co-defendant Mr P. to
the temporary detention centre of the Rudnyanskiy police station,
where they were to await the court hearing scheduled for 23 June
2003. According to the register of the temporary detention centre,
the applicant had no visible injuries on 20 June 2003.
- On
arrival at the temporary detention centre officer Sh. told the
applicant to go to a cell located across the corridor from the cell
where Mr P. had been placed. Apparently, this was intended to
prevent any communication between P. and the applicant.
- The
applicant refused to comply with Sh.’s order because from his
previous stay at the detention centre he knew that that cell was only
fit for short-term detention. There was no bed or mattress in the
cell but only a wooden board.
1. The applicant’s version of the subsequent
events
- Officer Sh. then brought in a very tall man in plain
clothes. The officers addressed that man as “Dima”. The
applicant unsuccessfully tried to explain to “Dima” why
he did not want to be kept in the cell in question. Officer Sh. went
out but immediately returned with a rubber truncheon and accompanied
by three officers. He hit the applicant on his left leg with the
truncheon and the applicant collapsed on the floor. Another officer
began twisting the applicant’s arms; another officer squeezed
his scrotum; a third officer strangled him and pulled his head
backwards. Sh. and “Dima” both punched him in the face.
More blows then followed but the applicant closed his eyes and could
not see who dealt them.
- The beating lasted for a couple of minutes. The
applicant cried out in pain. After they had stopped, another officer
in uniform told him to go to the cell. The officer was blond and
dumpy and had a golden finger-ring with a black stone. He reeked of
alcohol. The applicant told him that he had acted lawlessly because
he was drunk. The officer replied that his shift was over and he
could allow himself to drink a bit after a hard working day. Then
“Dima” intervened and told the officer not to make
excuses to the applicant.
- A few minutes later a short man entered. The applicant
knew that the man worked in the investigations division of the police
station. He asked the applicant to explain what had happened. The
applicant told him about his refusal to go to a cell without a bed
and about the beatings. The man spoke to Sh. and the applicant was
put in another cell.
2. The Government’s version of the events
- The Government relied on the findings made in the
domestic proceedings (see below). In particular they referred to the
statements made to their superiors by officers Sh., S., Pon. and Pod.
in relation to the use of force against the applicant. Officers Sh.
and S. reported that the applicant had grabbed at the officers’
uniforms, used coarse language, shouted and threatened to
self-inflict injuries; after his failure to comply with verbal orders
physical force, a truncheon and handcuffing had been applied.
Officers Pon. and Pod. made similar reports affirming that the
applicant had shouted, used coarse language, threatened them with
violence and grabbed at the officers’ uniforms. They also
stated that the applicant had hit his face against the floor in order
to self-inflict injuries.
3. The investigation into the allegation of
ill-treatment
- On the night of 20 and 21 June 2003 the applicant felt
ill and an ambulance was called. According to the medical record, the
applicant complained about pain in the [unreadable] area, headache
and dizziness. He was diagnosed with “vegetovascular dystonia”
and given some medicine.
- In the morning of 21 June 2003 the applicant made a
complaint about the beatings to the head of the police station and
the acting district prosecutor Z. The latter recorded the applicant’s
deposition (see paragraphs 10 - 12 above) and ordered an inquiry to
be carried out by an investigator at the Rudnyanskiy district
prosecutor’s office.
- On the same day, the investigator sought an expert
examination of the applicant. The applicant was examined by medical
expert G. in the temporary detention centre. It is stated, however,
in the written report that the examination had been carried out in a
civil hospital. The expert concluded that the applicant had two
bruises on the back side of his left thigh (measuring 4.8 x 6.5 cm
and 3 x 4.5 cm), a bruise on the right eyelid, bruises on the lips (1
x 2.5 cm, 2 x 2 cm and 2 x 3 cm); and a scratch on a finger on the
left hand. The expert concluded that the injuries could have been
caused by a hard blunt object or by hitting such an object
approximately a day ago. He further stated that it was up to the
investigating authority to determine the circumstances in which the
injuries had been sustained. Later on the same day, a formal order
was issued (see paragraph 24 below) asking G. to identify the
injuries (their nature, origin and location), their timing and
severity, as well as whether they could have been sustained by a fall
to the ground from his own height or have been self-inflicted by a
deliberate striking against metal bars or the floor.
- At 9.30 a.m. on 22 June 2003 the applicant felt ill
again, complaining of an acute headache, and vomited. He was examined
by a medical assistant (or an emergency squad). According to the
medical record (entry without number) the applicant suffered from
arterial hypertension and a vascular crisis.
- On 23 June 2003 the applicant and P. were brought to
the hearing before the Rudnyanskiy District Court. The applicant had
prepared a complaint about the ill-treatment and handed it over to
the judge at the preparatory stage of the hearing. He then complained
about an acute headache and was sent to the local hospital for
examination. The doctors diagnosed cerebral concussion and issued a
certificate stating that the applicant was unfit to take part in the
hearing.
- On 24 June 2003 the applicant was transferred back to
the remand centre in Smolensk. He was examined by a medical
assistant; a senior officer of the remand centre and Sh. were also
present. The medical assistant recorded the presence of blue bruises
under the applicant’s eyes.
- In
addition to the investigative measures already taken (paragraphs 15-16
above), the investigator interviewed the officers. In line with their
written reports (see paragraph 13 above), they claimed that the
applicant had cursed obscenely at them, pulled at their clothing and
shouted. They had all put the applicant on the floor and bent his arm
behind his back. Sh. had taken out a truncheon and delivered a
“relaxing blow” to the applicant’s leg. The
officers stated that he had threatened that he would accuse the
officers of ill-treatment; the applicant had tried to hurt himself,
banging his head against the floor and metal bars.
- At
the closure of the inquiry, by a decision of 24 June 2003 the
investigator of the Rudnyanskiy district prosecutor’s office
refused to institute criminal proceedings against the officers.
Having summarised their above statements and the findings of the
expert examination, the investigator concluded as follows:
“The medical examination revealed bruises and
abrasions on the applicant’s face that could have been caused
by contact with hard blunt objects. The accessibility of those facial
areas and other body parts to [the applicant’s] own hands does
not exclude the possibility that the injuries could have been
[self-inflicted].”
Lastly,
the investigator quoted the provisions of the domestic law on the
application of physical force to detainees (see paragraph 38 below).
- On 25 June 2003 the applicant complained of a headache
and dizziness, and was examined by a physician of the remand centre.
According to the preliminary findings of the physician, it was
possible that the applicant had a closed craniocerebral injury. On 26
June 2003 the applicant was examined by a neurologist in the prison
hospital. She confirmed a closed craniocerebral injury/a brain
contusion.
- The
applicant and his lawyer contested the investigator’s refusal
in court. On 21 August 2003 the Rudnyanskiy District Court of the
Smolensk Region granted their complaint, finding as follows:
“... the decision refusing to institute criminal
proceedings was given without adequate inquiry into the applicant’s
complaint and substantially breached the norms of the Code of
Criminal Procedure. The court has established that the inquiry into
the applicant’s complaints was incomplete. Other individuals
who were detained in the temporary detention centre have not been
identified or examined. The scene of the events has not been
inspected. Contradictions in testimonies – both in those of the
police officers, and in that of the applicant – have not been
removed. The decision does not indicate under what circumstances the
injuries were caused to the applicant. Nor does it state the ground
for refusing to institute criminal proceedings...”
Noting
certain other procedural defects in the investigator’s
decision, the District Court declared it unlawful and not justified
and sent the case file back to the prosecutor’s office.
- The matter was assigned to an assistant prosecutor. On
22 August 2003 he questioned an on-duty officer who had provided
officer Sh. with the help from officers Po. and S. The assistant
prosecutor also carried out a “crime scene inspection”
and questioned expert G. in relation to his report of 21 June
2003. The expert explained that he had examined the applicant and
then received the investigator’s order concerning the
commissioning of an expert report (see paragraph 16 above). The
expert confirmed that on 21 June 2003 he had noted bruises on
the applicant’s face, left thigh and abrasions on his left
wrist. Those injuries may have been caused by hard blunt objects.
- The assistant prosecutor inferred from the above
explanations that the medical expert had corroborated the statements
of the police officers, who had legitimately applied physical force
to the applicant. On 25 August 2003 the district assistant prosecutor
issued a new decision refusing to institute criminal proceedings. It
reads as follows:
“The applicant stated that after he had refused to
go to a cell the director of the detention centre hit him on his left
leg with the truncheon. The applicant collapsed on the floor and
other officers punched him in the face (on his head) and strangled
him. He could not see who did what because his head was pulled
backwards. All that time he was holding on to metal bars. He was then
put on the ground. Someone twisted his arms and handcuffed him.
Thereafter, the applicant had a headache and was examined by
paramedics.
It follows from the medical report that the applicant
had bruises on his face and left thigh, a scratch on the left hand.
These injuries do not amount to health damage. The applicant’s
allegations are refuted by other evidence.
Officers Sh., S., Pon., Pod. and Zh. stated that Sh. had
warned the applicant that physical force and constraints could be
applied against him if he maintained his refusal to obey the lawful
order. Instead, the applicant uttered threats of self-harm, used
course language and grabbed the officers’ uniforms. Sh.
inflicted one relaxing blow to the applicant’s thigh. The
applicant started to hit himself against the ground and metal bars.
Sh. and Pod., as well the other officers, who had then arrived at the
premises, put the applicant on the ground, twisted his arms,
handcuffed him and put in a cell. The officers made written reports.
Under the Police Act, their statements should be
examined together with all other factual information. The medical
expert indicated that...a bruise on the left thigh was caused by
contact with a blunt object. The other injuries could be inflicted by
a blow or contact with a blunt object. Thus, the injuries on the
applicant’s head and face could be caused in the circumstances
described by the officers. In view of the conclusive and coherent
nature of their statements, it should be concluded that the officers’
actions were lawful.”
- On
10 September 2003 the Rudnyanskiy district prosecutor reviewed that
decision and confirmed that the use of force against the applicant
had been lawful and justified in the circumstances of the case. It
stated as follows:
“Physical force and constraints were used against
the applicant. The legal grounds and limits for their use were
respected. The criminal inquiry had been carried out effectively and
established the relevant factual and legal matters.”
- The
applicant again complained to the court. On 27 November 2003 the
Rudnyanskiy District Court rejected his complaint, finding as
follows:
“The court has not established any breaches of the
Code of Criminal Procedure in the conduct of the inquiry. The inquiry
was comprehensive. All witnesses have been examined and their
statements analysed in the decision. The lawfulness of the
application of physical force to the applicant has been evaluated.
The decision contains grounds for refusing to institute criminal
proceedings. The grounds are corroborated with specific evidence:
testimony by witnesses and written materials. The defects referred to
in the District Court’s judgment of 21 August 2003 have been
removed.”
The
District Court found that the decision of 25 August 2003 was lawful.
- Apparently,
on 22 December 2003 the applicant submitted his statement of appeal
against the judgment of 27 November 2003 to the correspondence unit
of remand centre no. 67/1 for dispatch. It was recorded under no.
Ф-108 in the outgoing correspondence
log. By letter of 15 April 2004, the President of the
Rudnyanskiy District Court informed the applicant that no statement
of appeal had arrived at the registry of that court and that no
appeal against the judgment of 27 November 2003 had been
examined by the Smolensk Regional Court. Thus, this judgment was
final.
- While
the inquiry had thus been completed in 2003, in 2007 the deputy
prosecutor of the Smolensk Region considered that the district
assistant prosecutor had not been competent to issue the decision of
25 August 2003, and that he had not taken full account of the
available medical evidence, in particular the medical examinations of
the applicant on 23-26 June 2003 (see paragraphs 14, 17-19 and 22
above).
- On 17 May 2007 the Rydnyansky district prosecutor’s
office issued a new decision not to initiate criminal
proceedings. The district prosecutor relied on a medical
report issued on the same day on the basis of an assessment of the
case file. Apparently, the medical expert concluded that bruises on
the applicant’s face and left hip and scratches on the left
wrist had been caused one day before the initial examination of the
applicant, and that the subsequent indications concerning a possible
brain contusion were not “confirmed by clinical data and thus
could not be a subject-matter of an expert assessment”. With
reference to the report, the prosecutor considered that the head
injuries could have been caused in the circumstances described by the
officers.
- On
17 December 2007 the deputy regional prosecutor annulled this
decision, considering that the applicant should have been warned
about criminal liability for false denunciation and that the lower
prosecutor should have decided whether it was necessary to prosecute
the applicant.
- On 8 April 2010 an investigator in the Demidovskiy
Investigations Unit of the Regional Prosecutor’s Office issued
a decision not to initiate criminal proceedings against any public
official. The investigator considered that the use of force against
the applicant had been lawful under the Custody Act (see paragraph 38
below) and did not constitute a criminal offence under Articles 285
or 286 of the Criminal Code concerning abuse or excessive use of
power respectively. The investigator held as follows:
“As was established during the inquiry,...after
the applicant had refused to go to cell no. 2, Mr Sh. warned him
several times that his refusal to comply with the order could lead to
the use of restraint or physical force against him. The applicant did
not react to the warning; he threatened to self-inflict injuries,
used coarse language against the officers and touched their
uniforms... Mr Sh. called more officers to help him and dealt a
relaxation blow with a rubber truncheon to the applicant’s hip.
The applicant then started to intentionally hit his head against the
floor and metal bars. Mr Sh. and others held the applicant down on
the floor, handcuffed his hands behind his back and put him in the
cell. The officers made their reports...The above-mentioned
circumstances are confirmed by the medical report of 17 May 2007,
which disclosed injuries of a mechanical nature that could have been
caused in the circumstances described ...The use of restraint and
physical force was lawful and does not disclose elements of offences
under Article 285 and 286 of the Criminal Code ...”
B. Criminal proceedings against the applicant
- The
applicant was charged with several counts of armed robbery. As
established by the national authorities, in April 2003 on their way
from Vitebsk to Moscow the applicant, P. and his girlfriend Sch.
stopped to see acquaintances of P.. While Sch. stayed sleeping in the
car, the applicant accompanied P. to the acquaintances’ house.
During a quarrel which had broken out among them, the applicant
ordered one of the victims to hand over to him a diamond ring,
threatening him with a gun. When leaving the house he also picked up
the telephone set.
- The
applicant pleaded that he had been in a different place on the
relevant date. He alleged that he had received the ring from Sch. to
sell but had then returned it to its owner.
- During
a pre-trial police line-up the victims identified the applicant as
their assailant. Sch. stated to the investigator that on his return
from the victims’ home P. had told her about the quarrel and
she had seen a telephone set in the car. She confirmed that P. and
the applicant had not had any common purpose in going to the victims’
house. Apparently, she confirmed her deposition at a face-to-face
confrontation with the applicant. Sch. refused to come to the trial,
referring to her residence in Belarus and her state of health.
- P.
stated at the trial that after he had left the house the applicant
had remained inside. The applicant’s girlfriend stated that she
knew that the applicant had accompanied P. on the relevant date and
that the applicant had later on asked her to return the ring to the
victim. The trial court also heard witnesses on the applicant’s
behalf and dismissed their testimonies as contradictory and
unreliable. With reference to Sch.’s pre-trial statement, the
court rejected the prosecution’s submission that the defendants
had acted in concert to commit robbery.
- On
16 October 2003 the Rudnyanskiy District Court of the Smolensk
Region convicted the applicant as charged and sentenced him to seven
years’ imprisonment. On 16 December 2003 the Smolensk Regional
Court upheld the judgment in substance.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Use of force against detainees
- Under section 44 of the Custody Act, physical force
may be used against a suspect or an accused in a detention facility
in order to put an end to an offence or his resistance to lawful
orders issued by public officials, if other means prove to be
inefficient. Rubber truncheons may be used to stop a detainee
assaulting a public official, to put an end to mass disorder or
breaches of prison rules committed in a group, to put an end to
unlawful actions on the part of the detainee if he resists a lawful
order, or to prevent him from causing damage to others (section 45).
Handcuffs may be used to put an end to unlawful actions on the part
of the detainee if he resists a lawful order, or to prevent him from
causing damage to himself or others (ibid).
B. Code of Criminal Procedure (CCrP)
- Article 125 of 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:
(i) to declare the impugned decision/(in)action unlawful or
unreasonable and to order the respective authority to remedy the
violation; or (ii) to reject the complaint.
- In its Resolution of 10 February 2009 the Plenary
Supreme Court of Russia considered that it was incumbent on the
judges to verify before processing an Article 125 complaint whether
the preliminary investigation has been completed in the main case
(point 9). If the main case has already been set for trial or has
been completed, the complaint should not be examined unless it was
brought by a person who was not a party to the main case or if the
complaint was not amenable to judicial review under Article 125 at
the pre-trial stage of the proceedings. In all other situations, the
complaint under Article 125 should be left without examination and
the complainant be informed that he or she can raise the matter
before the trial or/and appeal courts in the main case.
- In the same vein, according to the interpretation
given by the Constitutional Court, a complaint under Article 125
cannot be brought or pursued after the criminal case to which the
complaint is connected has been submitted for trial. However, when it
is established that a party to the proceedings (including a judge or
a witness) has committed a criminal offence, thus seriously affecting
the fairness of the proceedings, the Code exceptionally allows for a
separate investigation of the relevant circumstances leading to a
reopening of the case (see Decision no. 412-O-O of 17 November 2009;
see also Ruling no. 13-П of 29
April 1998 and Ruling no. 5-П of 23 March 1999 concerning
respectively Articles 113 and 218 of the RSFSR Code of Criminal
Procedure before 1 July 2002).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained under Articles 3 and 13 of the Convention that
he had been ill-treated on 20 June 2003 and that the investigation
into his complaint had not been effective. The Court considers that
the applicant’s complaint should be examined under the
substantive and procedural aspects of Article 3 of the Convention
only. This provision reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
- The
Government argued that the applicant had failed to appeal against the
judgment of 27 November 2003 upholding the refusal, dated 25 August
2003, to prosecute the police officers. Besides, the applicant should
have complained to a prosecutor against an investigator’s
decision or to a higher prosecutor in relation to a decision taken by
a lower prosecutor.
- The
applicant submitted that his appeal had not been processed by the
staff of the remand centre.
- The Court reiterates that the purpose of Article 35 of
the Convention is to afford the Contracting States the opportunity of
preventing or putting right the violations alleged against them
before those allegations are submitted to it (see Civet v.
France [GC], no. 29340/95, § 41, ECHR 1999-VI). Whereas
Article 35 § 1 of the Convention must be applied with some
degree of flexibility and without excessive formalism, it does not
require merely that applications should be made to the appropriate
domestic courts and that use should be made of effective remedies
designed to challenge decisions already given. It normally requires
also that the complaints intended to be brought subsequently before
the Court should have been made to those same courts, at least in
substance and in compliance with the formal requirements and
time-limits laid down in domestic law (see, among other authorities,
Cardot v. France, 19 March 1991, § 34, Series A no. 200).
- The
Court has doubts as to whether it was still open to the applicant to
obtain a ruling on appeal against the judgment of 27 November 2003
after the completion of his own criminal proceedings in December 2003
(see the relevant domestic law and practice cited in paragraphs 40-41
above). In any event, the impugned refusal was annulled in 2007, and
the applicant had already sought judicial review of the previous
refusal to prosecute and was successful. He thus afforded the
national authorities an adequate opportunity to carry out an inquiry
and to establish the relevant facts. Therefore, in the circumstances
of the case the Court cannot dismiss the complaint for non-exhaustion
of domestic remedies. Thus, the Government’s objection is
rejected.
- As
regards hierarchical appeals, the Court has previously examined and
dismissed a similar argument on a number of occasions (see, among
others, Belevitskiy v. Russia, no. 72967/01, §§ 59
and 60, 1 March 2007). It finds no reason to reach a different
conclusion in the present case.
- The
Court concludes that this complaint is not manifestly ill-founded
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
1. The parties’ submissions
- The
Government argued that the applicant had failed to comply with a
lawful order. Despite several warnings about the potential use of
force against him, he persisted and tried to self-inflict injuries.
The officers had been justified in using physical force against him,
as well as a truncheon and handcuffs. The applicant’s complaint
had given rise to a prompt and thorough inquiry on the part of the
national authorities in 2003. The facts of the case had not provided
sufficient grounds for bringing criminal proceedings on account of
any abuse of power or excessive use of power by a public official.
Thus, the national decisions not to institute criminal proceedings
had been lawful.
- The
applicant submitted that he had had no injuries during his stay in
the remand centre before 20 June 2003. He alleged that he had been
beaten by the officers in the temporary detention centre and that the
force used against him had not been legitimate. His refusal to obey
the order had not been capricious, since the cell which he had been
assigned had had no proper facilities. The Government had failed to
prove that the use of force had been absolutely necessary in response
to his alleged use of coarse, insulting or threatening language or
touching of the officers’ uniforms. It was uncontested that he
had sustained injuries on that date. The Government had failed to
specify which injuries had been caused by the officers and which had
been self-inflicted.
- The
applicant also contended that the investigation into his complaint
had been ineffective in that the authorities had failed to comply
with the court instructions of 21 August 2003. In particular, they
should have carried out measures aimed at interviewing other persons
in the detention centre; dispelling the contradictions between the
applicant’s and/or officers’ statements, for instance by
setting up a face-to-face confrontation between them or by organising
a line-up to identify the officers; specifying the context in which
the injuries had been inflicted and providing reasons for the
refusals to prosecute the officers. The expert report of 21 June 2003
did not contain any indication of the methods used and omitted to
identify a brain contusion; no further medical examination was
commissioned. Moreover, the personnel of the prosecutor’s
office could not have been independent in their investigation since
they had a double function of making inquires and ensuring the
lawfulness of such inquires. The lack of such independence had
prejudiced the process of collecting and assessing the evidence.
Lastly, the proceedings in 2007 could not and did not remedy the
initial failure to assess the medical evidence.
2. The Court’s assessment
(a) Alleged excessive use of force
- The Court reiterates that Article 3 of the Convention
prohibits in absolute terms torture and inhuman or degrading
treatment or punishment. In order to fall within the scope of Article
3, the ill-treatment must attain a minimum level of severity, the
assessment of which depends on all the circumstances of the case,
such as the duration of the treatment, its physical or mental effects
and, in some cases, the sex, age and state of health of the victim
(see, among others, Ireland v. the United Kingdom, judgment of
18 January 1978, § 162, Series A no. 25).
- The Court observes, and it is not in dispute between
the parties, that the applicant was brought to the temporary
detention centre “in good health”. As follows from the
expert report of 21 June 2003, the applicant sustained in the
temporary detention centre the following injuries: two bruises on the
back side of his left thigh (measuring 4.8 x 6.5 cm and 3 x 4.5
cm), a bruise on the right eyelid, bruises on the lips (1 x 2.5 cm, 2
x 2 cm and 2 x 3 cm); and a scratch on a finger on the left hand.
Some medical reports refer to bruises under both eyes and abrasions
on the left wrist.
- It is also noted that there are consistent indications
in the present case that the applicant had a brain contusion (see
paragraphs 14, 17, 18 and 22 above).
- Although
the above injuries did not constitute health damage by national
standards (see paragraph 25 above), in the Court’s view, those
injuries were sufficiently serious to reach the “minimum level
of severity” under Article 3 of the Convention. It
remains to be considered whether the State should be held
responsible under Article 3 for the injuries.
- The
Government’s submissions are twofold: (i) “certain
injuries” resulted from the legitimate use of force against the
applicant; (ii) the “other injuries” were self-inflicted.
In the applicant’s submission, after a blow with a truncheon he
was subjected to a gratuitous physical assault on the part of the
officers who, inter alia, hit him on the head (see paragraph 10
above).
- In assessing evidence, the Court has generally applied
the standard of proof “beyond reasonable doubt”. However,
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
Zelilof v. Greece, no. 17060/03, § 44, 24 May
2007, and Polyakov v. Russia, no. 77018/01, §§
25 and 26, 29 January 2009).
- In the present case, the burden rests on the
Government to demonstrate with convincing arguments that the use of
force was not excessive (see,
mutatis
mutandis,
Rehbock
v. Slovenia,
no. 29462/95, § 72, ECHR 2000-XII, and
Matko v. Slovenia,
no. 43393/98, § 104, 2 November 2006).
- The Court reiterates in that connection that where
domestic proceedings have taken place, as in the present case, 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 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, cited above, § 100). Where allegations are made under
Article 3 of the Convention, however, the Court must apply a
particularly thorough scrutiny.
- The
Court observes, and it is not in dispute between the parties, that
the applicant disobeyed an order given by a public official. Nothing
in the file discloses that this order was unlawful or unreasonable.
The Court further observes that, as it follows from the Government’s
submissions, being faced with the applicant’s objections to go
to a cell, the officers ordered the applicant to stop his unruly
behaviour, but the applicant again refused to comply. The Court
observes that, as established at the national level, the applicant’s
resistance to the lawful order consisted in verbal expression
(threats of self-inflicted damage and coarse language directed at the
officers) and “grabbing” at the officers’ uniforms.
- The
Court accepts that in these circumstances the officers may have
needed to take measures to prevent further disruptions and calm the
applicant down. The mere dissatisfaction of the applicant with the
conditions of detention did not justify his refusal to comply with
the orders. The question before the Court is whether the use of
force was in compliance with the requirements of Article 3 of the
Convention.
- The Court has emphasised that persons in custody are
in a vulnerable position and that the authorities are under a duty to
protect their physical well-being (see Tarariyeva v. Russia,
no. 4353/03, § 73, ECHR 2006-... (extracts); 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). At the same time, the Court
is also mindful of the potential for violence that exists in
penitentiary institutions and of the fact that disobedience by
detainees may quickly degenerate into a riot (see Gömi
and Others v. Turkey, no. 35962/97,
§ 77, 21 December 2006). The Court has previously
accepted that the use of force may be necessary to ensure
prison security, to maintain order or prevent crime in penitentiary
facilities. Nevertheless, as noted above, such
force may be used only if indispensable and must not be excessive
(see Ivan Vasilev v. Bulgaria, no. 48130/99, § 63,
12 April 2007).
- The
applicant centred his grievance on the allegedly gratuitous use of
force against him after the use of a truncheon and handcuffing in
respect of him. According to the applicant, after he had
collapsed on the floor, one of the officers twisted his arms; another
officer strangled him and pulled his head backwards; two officers
punched him in the face. More blows then followed but the applicant
closed his eyes and could not see who dealt them.
- As
regards this chain of the events, referring to the findings of the
national authorities the Government argued that the applicant had
banged his head deliberately against the floor and/or metal bars.
- It
is uncontested that a rubber truncheon was used on the applicant in
the temporary detention centre. It is questionable whether hitting
the applicant with a truncheon was conducive to the desired result
and whether the possibility of using other less intrusive means was
considered (see Antipenkov v. Russia, no. 33470/03, §§
56-61, 15 October 2009, and Vladimir Romanov v. Russia, no.
41461/02, §§ 64-70, 24 July 2008). It is observed in that
connection that two bruises on the back side of the applicant’s
left thigh were recorded during the medical examination of the
applicant.
- The
Court also reiterates that the investigator first considered that the
accessibility of the facial areas and other body parts to the
applicant’s own hands did not exclude the possibility that the
injuries could have been self-inflicted. However, the national court
considered, among other things, that the investigator’s
decision had not removed contradictions in testimonies of the
officers and in that of the applicant. Nor did this decision indicate
under what circumstances the injuries had been sustained by the
applicant. In addition, the Court notes that it was not argued before
the investigator that the applicant had self-inflicted any health
damage with his own hands.
67. After
a number of investigative measures, a new decision was issued by an
assistant prosecutor. He noted that the officers’
statements were conclusive and coherent, and concluded that the
injuries on the applicant’s head and face could be caused in
the circumstances described by the officers. This decision was then
upheld by the district prosecutor and the district court. While
the inquiry had thus been completed in 2003, in 2007 the deputy
prosecutor of the Smolensk Region considered that the district
assistant prosecutor had not been competent to issue the decision of
25 August 2003. Importantly, it was also considered that the
assistant prosecutor had not taken full account of the available
medical evidence, in particular the medical examinations of the
applicant on 23-26 June 2003 (see paragraphs 14, 17-19 and 22 above).
Despite the above considerations, the resumption of the inquiry
between 2007 and 2010 did not reach any conclusions, which would
amend the findings made in 2003.
- Having
regard to the above, the Court considers that the authorities have
not provided a satisfactory and convincing explanation to show that
some of the injuries were self-inflicted. Thus, the Court concludes
that these injuries resulted from the use of force against the
applicant. In this respect the Court takes note of these injuries as
described in paragraphs 53 and 54 above, and reiterates that the
force was used in order to make the applicant enter a particular
cell.
- Having
regard to these considerations and having examined the available
material before it, the Court considers that it has not been
convincingly shown that the force used against the applicant was
strictly necessary in the circumstances of the case (see, mutatis
mutandis, Alibekov v. Russia, no. 8413/02, § 57
et seq., 14 May 2009; Toporkov v. Russia, no. 66688/01, §
45 et seq., 1 October 2009; and Isayev v. Russia,
no. 20756/04, §§ 100-102, 22 October 2009).
- For
these reasons, the Court concludes that there has been a violation of
Article 3 of the Convention as the applicant was subjected to
treatment, which the Court considers to be inhuman and degrading in
breach of the above provision.
(b) Alleged inadequacy of the
investigation
- The
Court reiterates that where an individual raises an arguable claim
that he has been ill-treated by agents of the State 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
investigation (see, among others, Assenov and Others v. Bulgaria,
28 October 1998, § 102, Reports of Judgments and Decisions
1998 VIII).
- An
obligation to investigate is an obligation of means: not every
investigation should necessarily 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, and Mahmut Kaya v. Turkey, no. 22535/93, §
124, ECHR 2000-III).
- The
investigation into “arguable” allegations of
ill-treatment must be thorough. That means that the authorities must
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 for their decisions (see Assenov, cited above, §
103 et seq.). They must take all reasonable steps available to them
to secure evidence concerning the incident, including eyewitness
testimony and forensic evidence (see Tanrıkulu v. Turkey
[GC], no. 23763/94, § 104 et seq., ECHR 1999-IV; and Gül
v. Turkey, no. 22676/93, § 89, 14 December 2000).
Also, the Court has often assessed whether the authorities reacted
promptly to the complaints at the relevant time, consideration being
given to the date of commencement of investigations, delays in taking
statements and the length of time taken to complete the investigation
(see Labita v. Italy [GC], no. 26772/95, § 133
et seq., ECHR 2000 IV, and Indelicato v. Italy,
no. 31143/96, § 37, 18 October 2001). 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 the applicable standard.
- Turning
to the present case, the Court first observes that the officers made
reports concerning the use of force against the applicant. It is also
noted that the national authorities promptly opened and carried out
an inquiry following his complaint. For unspecified reasons, the
inquiry file was re-examined in 2007. The most recent decision was
taken on 8 April 2010; no investigative measures were taken between
2007 and 2010.
- Second,
the applicant also argued that the medical examination had been
carried out before receipt of a formal request containing sufficient
details; that the expert report did not contain any indication of the
methods used, omitted to identify a brain contusion while no further
medical examination was commissioned.
- The
Court has doubts as to the quality of the expert examination carried
out on 21 June 2003 before the investigator issued a formal decision
on the matter with a list of questions to be dealt with by the
expert. As noted by the applicant, the expert report does not shed
light on whether the injuries could have been caused in the
circumstances described by the applicant or the officers. It is
further noted that the investigator’s decision of 8 April 2010
referred to an expert report dated 17 May 2007 (see paragraph 30
above). Despite the instructions given by the deputy regional
prosecutor in April 2007 concerning the need for the global
assessment of the available medical evidence, the Court is not
satisfied that the national authorities made such assessment, which
could have allowed for a plausible conclusion regarding the
self-infliction of “certain injuries”. The Court
reiterates in this connection that proper medical examinations are an
essential safeguard against ill-treatment (see Akkoç v.
Turkey, nos. 22947/93 and 22948/93, §§ 55 and
118, ECHR 2000-X).
- Despite
the fact that in late June 2003 the applicant was examined by various
medical professionals in the temporary detention centre, in a civil
hospital, in Smolensk remand centre and by an emergency squad, as
well as by medical expert G., none of the above persons, except for
G., was interviewed in the course of the criminal inquiry.
- It
cannot be held on the basis of the available material that the
relevant checks were carried out in respect of the applicant’s
grievances relating to a possible brain contusion. In addition, no
detainee, for instance Mr P., who was present on 21 June 2003 in
the temporary detention centre, was interviewed. Moreover, the Court
finds it worrying that despite the presence of visible marks on the
applicant’s face his state of health was not a matter of
concern or enquiry for a judge who saw him at the court hearing on
23 June 2003 (see paragraph 18 above).
- Furthermore,
the Court cannot but note that the domestic decisions focused on the
lawfulness of the officers’ actions under the Custody Act and
whether the actions disclosed elements of criminal offences
concerning abuse or excessive use of power by a public official. Such
narrow scope of review did not meet the requirement for an effective
and thorough investigation capable of giving a plausible explanation
for the applicant’s injuries. The Court reiterates in that
connection that, in determining whether there has been a breach of
Article 2 or 3, it is not assessing the criminal responsibility of
those directly or indirectly concerned. The responsibility of a State
under the Convention, arising from the acts of its organs, agents and
servants, is not to be confused with the domestic legal issues of
individual criminal responsibility under examination in national
proceedings (see Golubeva v. Russia, no. 1062/03, § 98,
17 December 2009, with further references).
- In
view of the above, the Court concludes that the investigation into
the complaint about the excessive use of force against the applicant
did not comply with the requirements of Article 3 of the
Convention. There has therefore been a violation of that
provision in this respect.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Article 6 of the Convention that the trial
court in his criminal case had misapplied the national law and had
not been impartial; that he had not been afforded an opportunity to
examine witness Sch.; that the trial court had rejected various
motions and had convicted him on inadmissible evidence.
- The
Court has examined the remaining complaints as submitted by the
applicant. Having regard to the material in its possession, the Court
finds that they do not disclose any appearance of a violation of the
rights and freedoms set out in the Convention or its Protocols. It
follows that this part of the application must be rejected as being
manifestly ill-founded, pursuant to Article 35 §§ 3 and 4
of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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 30,000 euros (EUR) in respect of non-pecuniary
damage and damage to his health.
- The
Government contested this claim.
- Having
regard to the nature of the violations found and making an assessment
of an equitable basis, the Court awards the applicant EUR 9,000 in
respect of non-pecuniary damage, plus any tax that may be chargeable
to the applicant.
B. Costs and expenses
- Since
the applicant made no claim under this heard, no award is required.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the alleged
excessive use of force and an ineffective investigation admissible
and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
3 of the Convention as the applicant was subjected to treatment,
which the Court considers to be inhuman and degrading in breach of
the above provision;
- Holds that there has been a violation of Article
3 of the Convention in that the investigation concerning the use of
force did not comply with the requirements of that provision;
- 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 9,000 (nine
thousand euros), plus any tax that may be chargeable to the
applicant, 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;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 5 April 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
