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FIRST
SECTION
CASE OF VOLODARSKIY v. RUSSIA
(Application
no. 45202/04)
JUDGMENT
STRASBOURG
14
February 2012
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 Volodarskiy 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 24 January 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 45202/04) 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 Russian national, Mr Mikhail Leonidovich
Volodarskiy (“the applicant”), on 18 November 2004.
- The
applicant was represented by Ms Y.A. Bugayenko, a lawyer practising
in Moscow. The Russian Government (“the Government”) were
represented by Mr G. Matyushkin, Representative of the Russian
Federation at the European Court of Human Rights.
- The
applicant alleged, in particular, that he had been ill-treated in
police custody without a subsequent effective investigation into his
complaints, and that the trial court considering his criminal case
had refused to summon certain witnesses.
- On
26 May 2010 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
(Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1969 and lives in Moscow.
- During
the evening of 14 October 2003 the applicant assaulted Ms G. in
an attempt to steal her handbag. After searching the surrounding
streets, Ms G. and her acquaintance, Mr Sh., located the applicant at
a bus stop nearby.
- As
quoted in the report of the internal security office of the Interior
Department of the South-West Administrative District of Moscow of
19 December 2003 (see paragraph 21 below), police officers M.
and S., who arrived at the scene after a telephone call from Ms G.,
stated that when they arrived they saw that the applicant’s
head had been bleeding and his jacket was torn. They handcuffed him
when he attempted to escape.
- After
taking the applicant to Cheremushinskoye police station, the police
officers called an ambulance which took him to a hospital for first
aid to be administered. Afterwards he was taken back to the police
station and released on the following day after questioning.
A. Criminal proceedings against the applicant
- On
17 October 2003 criminal proceedings were instituted by the
investigative department of Cheremushinskoye police station against
the applicant in connection with the incident of 14 October 2003. On
the same date the investigator drew up a record of the inspection of
Ms G.’s handbag describing its appearance and contents which
included a cell phone and a certain amount of money. The record also
included an estimate of the cost of the objects. Two attesting
witnesses, P. and K., put their signatures on the record of
inspection and on the decision of the same date to include in the
body of evidence the above-mentioned objects.
- The
records of the questioning of Ms G. and Mr Sh. of 3 November
2003 contain the following identical statements:
“[The applicant] tried to run away but Sh. stopped
him and grabbed his arms. [The applicant] made several other attempts
at absconding before the arrival of the police, which is why Sh. had
to physically restrain him, and that might have caused some bodily
injury ... Upon their arrival the police handcuffed [the applicant].”
- When
being questioned on 3 December 2003 as a suspect, the applicant
stated the following:
“The woman pushed me in the chest, and the man hit
me on the head with the handle of a handgun, causing bleeding ... The
woman walked to a nearby shopping centre and returned with two
security guards, after which the three men started beating me. Then
the woman used her mobile phone to call the police ... I was then
taken to Cheremushkinskoye police station where I was handcuffed to
the iron bar of a cell.
In the questioning office ... I was told to sit down on
the floor. On several occasions I tried to get up and the police
officer took a truncheon and hit me across the legs. The other police
officers started mocking me and told me to sing [a children’s
song] to identify my voice, which I did as I feared that I would be
subjected to physical violence.”
- On
4 December 2003 an expert forensic report concluded that he suffered
from “shift-like” schizophrenia with pronounced
psychological effects.
- On
27 May 2004 the Cheremushinskiy District Court of Moscow (“the
District Court”), while considering the criminal charge against
the applicant, refused a request by the applicant’s counsel to
summon the attesting witnesses P. and K., who were allegedly
ex-police officers, for lack of sufficient grounds to question their
identity. Counsel further demanded that the signed documents be
struck out of the list of evidence as they were improperly drawn up.
This request was also dismissed as the court held that the documents
had been drawn up in accordance with the law.
- On
28 May 2004 the District Court found that the applicant had committed
attempted robbery with assault, but relieved him of criminal
liability on account of his mental-health status and ordered his
placement in a psychiatric hospital. The court based its conclusion
on the statements of Ms G. and Mr Sh. made in court, as well as
various procedural documents, including the record of inspection of
Ms G.’s belongings and the decision to include the objects in
the body of evidence signed by the attesting witnesses. It also
referred to the statement made by the applicant’s mother, who
acted as his lawful representative, to the effect that the applicant
had been beaten up by strangers who had subsequently turned him in to
the police.
- On
11 August 2004 the Moscow City Court (“the City Court”)
upheld the above-mentioned decision on appeal.
B. The applicant’s complaint of alleged police
ill-treatment
- On
16 October 2003 the applicant’s mother complained to the
prosecutor of the Cheremushinskiy District of Moscow, requesting the
opening of criminal proceedings in connection with the applicant’s
alleged ill-treatment in custody. On an unspecified date her
complaint was referred by the prosecutor to the internal security
office of the Interior Department of the South-West Administrative
District of Moscow for an inquiry.
- On
16 October 2003 the applicant went to a municipal hospital which
recorded multiple bruises on his head, neck and torso, and an
abrasion on the back of his head.
- On
18 October 2003 he attended at another hospital which recorded an
infected wound on his head and hypoesthesia of the fingers of the
right hand.
- Both
records contain the following references:
“According to the [applicant], on 14 October 2003
he was beaten up by the officers of Cheremushinskoye police station”.
- On
4 December 2003 the investigator in charge of the applicant’s
criminal case commissioned an expert forensic report on account of
the applicant’s allegations of ill-treatment made in the course
of the criminal investigation against him. In his order he indicated
that the experts should examine the available medical documents. He
also referred the complaint of ill-treatment for examination to the
prosecutor’s office of the Cheremushinskiy District of Moscow.
- On
19 December 2003 the internal security office of the Interior
Department of the South-West Administrative District of Moscow
completed the inquiry prompted by the applicant’s mother’s
complaint, producing a report of the same date. In particular, the
inquiring officer stated as follows:
“Police officers M. and S. questioned in the
course of the inquiry stated that they had put handcuffs on [the
applicant] as during the apprehension the latter had put up
resistance and had tried to hit M.
The above-mentioned officers also stated that when they
had discovered that [the applicant] had a head injury, they called an
ambulance after escorting [the applicant] to the police station.
After [the applicant] was administered medical aid at
Moscow municipal hospital no. 1, he was again brought to
Cheremushinskoye police station.
Duty officer Shi. and investigator G. stated that there
had been no unlawful actions during [the applicant’s]
apprehension and questioning.
...
Thus, the allegations of unlawful actions by police
officers were not proved during the inquiry, and the use of handcuffs
was not in breach of Article 14 of the Police Act.
However, given that the complaint refers to unlawful
actions by police officers which fall within the competence of the
prosecutor’s office, [I] suggest terminating the internal
inquiry, sending the material collected by the internal inquiry to
the Cheremushinskiy District prosecutor’s office for taking a
decision in accordance with the law, and informing the parties
concerned about the decision.”
- On
24 December 2003 the State forensic experts issued a conclusion which
reiterated the medical data as described above (see paragraphs 17 and
18 above) and stated that the recorded injuries had not led to any
consequences for the applicant’s health. The experts could not
determine the circumstances or the date of the injuries due to the
lack of comprehensive data.
- On
9 January 2004 the prosecutor of the Cheremushkinskiy District of
Moscow, relying on the statements made by police officers M., S. and
Shi. in the context of the investigation by the internal security
office, decided not to institute criminal proceedings in respect of
the applicant’s alleged ill-treatment.
- On
22 September 2004 the applicant, his mother and counsel challenged
the above decision in court.
- On
18 November 2004 the District Court heard the applicant’s
mother, his counsel and a representative of the prosecutor’s
office and dismissed the complaint as unfounded after concluding that
the applicant’s injuries had been caused by the third parties
who had restrained him at the scene. In particular, the court said:
“As follows from the statements given by Ms G., Mr
Sh. and police officers S. and M., at the moment of the arrest [the
applicant] ... had injuries which had occurred before arrival of the
police. [The applicant’s mother] ... also confirmed at the
hearing that her son had been beaten up with a handgun before arrival
of the officers of Cheremushkinskoye police station.”
- On
3 February 2005 the City Court upheld the above decision on appeal.
II. RELEVANT DOMESTIC LAW
- The
Code of Criminal Procedure of the Russian Federation, in force since
1 July 2002 (Law no. 174-FZ of 18 December 2001 –
“the CCrP”), establishes that a criminal investigation
may be initiated by an investigator or prosecutor following a
complaint by an individual (Articles 140 and 146). Within three days
of receiving such a complaint, the investigator or prosecutor must
carry out a preliminary inquiry and take one of the following
decisions: (1) to open criminal proceedings if there is reason to
believe that a crime has been committed; (2) to refuse 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 refusal to open criminal
proceedings is amenable to appeal to a higher-ranking prosecutor or a
court of general jurisdiction (Articles 144, 145 and 148).
Article 125 of the CCrP provides for judicial review of the
lawfulness and reasonableness of decisions by investigators and
prosecutors that might infringe the constitutional rights of
participants in proceedings or prevent access to a court.
- Article
60 of the CCrP defines “attesting witness” as a person
with no stake in the outcome of a criminal investigation who is
called on by an investigator to attest to the fact of the
investigative action, its course and results. Article 170 of the CCrP
provides that certain investigative actions, including examination of
evidence, should be carried out with participation of at least two
attesting witnesses.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained under Article 3 of the Convention of his alleged
ill-treatment in custody. He further complained under the same
provision and under Article 13 of the Convention that the
investigation into his complaints had not been thorough as its
conclusions had been based on the statements of the implicated police
officers. The authorities had not examined any individuals who could
have confirmed or refuted the above statements and had made no effort
to identify any eyewitnesses of his apprehension.
- The
Court will consider the applicant’s complaints under the
substantive and procedural limbs of Article 3. The relevant provision
reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Submissions by the parties
- The
Government referred to the findings of the domestic authorities and
argued that the applicant had received his bodily injuries before the
arrival of the police and had not been subjected to any treatment
incompatible with Article 3 of the Convention during the arrest or
while in police custody. They further argued that the investigation
into the applicant’s complaints had been thorough and
effective.
- The
applicant insisted that he had been ill-treated in police custody and
the authorities had failed to provide an adequate explanation for his
injuries.
B. The Court’s assessment
1. 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.
2. Merits
(a) Alleged ill-treatment
(i) General principles
- Article
3 enshrines one of the most fundamental values of democratic
societies. Even in the most difficult circumstances, such as the
fight against terrorism and organised crime, the Convention prohibits
in absolute terms torture and inhuman or degrading treatment or
punishment, irrespective of the victim’s conduct (see Labita
v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV,
and Chahal v. the United Kingdom, 15 November 1996,
§ 79, Reports of Judgments and Decisions 1996-V).
- The
Court reiterates that allegations of ill-treatment must be supported
by appropriate evidence (see, mutatis mutandis, Klaas
v. Germany, 22 September 1993, § 30, Series A no. 269).
To assess this evidence, the Court adopts the standard of proof
“beyond reasonable doubt” but adds that such proof may
follow from the coexistence of sufficiently strong, clear and
concordant inferences or of similar unrebutted presumptions of fact
(see Ireland v. the United Kingdom, 18 January 1978,
§ 161, Series A no. 25). Where the events in issue lie wholly or
in large part within the exclusive knowledge of the authorities, as
in the case of persons under 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 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, cited above, §
29). 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).
(ii) Application of the above principles
in the present case
- The
Court observes that the District Court addressed the substance of the
applicant’s complaint of ill-treatment by the police in its
decision of 18 November 2004. Its decision to dismiss the
applicant’s complaint for lack of grounds was based on the
analysis of the statements made by the victim of the assault and her
acquaintance in the context of the criminal proceedings, the
applicant’s mother who represented the applicant’s
interests in court and the police officers involved in the arrest.
- The
Court does not find anything in the applicant’s submissions
that would warrant a departure from the conclusion reached by the
domestic court. The applicant, the individuals who restrained him
until the arrival of the police and the police officers who
apprehended the applicant concur that a certain amount of physical
force was applied to the applicant before his apprehension. The
description of the applicant’s injuries contained in the
medical reports, taken together with the statements of the
aforementioned persons, makes it plausible that he sustained the head
wound, concussion, hypoesthesia of the fingers, and bruises on the
upper part of his body before the arrival of the police (see
paragraphs 10-11 and 17-18 above). On the contrary, there is no
medical evidence that the applicant suffered any truncheon blows to
the legs, as it was alleged by him. Nor is there any evidence that he
had been handcuffed to the bar of the cell or made sing a song.
- In
the light of the foregoing, the Court considers that the material
before it does not provide sufficient evidence of the State’s
responsibility for the injuries inflicted upon the applicant or for
any other form of ill treatment. Accordingly, there has been no
violation of Article 3 of the Convention in respect of the
applicant’s alleged ill-treatment.
(b) 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. 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.
- An
investigation into serious 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 for their decisions. They must take all reasonable steps
available to them to secure evidence concerning the incident,
including, inter alia, a detailed statement concerning the
allegations from the alleged victim, eyewitness testimony and
forensic evidence. 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, among many authorities, Assenov and Others v.
Bulgaria, no. 14760/94, §§ 107 et seq., Reports
1998 VIII; Batı and Others v. Turkey, nos.
33097/96 and 57834/00, § 134, ECHR 2004 IV (extracts);
Mikheyev v. Russia, no. 77617/01, §§ 107-08,
26 January 2006; and Shishkin v. Russia, no. 18280/04,
§§ 95 96, 7 July 2011).
(ii) Application of the above principles
in the present case
- Turning
to the circumstances of the present case, the Court observes that the
applicant complained of ill-treatment by way of his mother’s
request for the institution of criminal proceedings filed on 16
October 2003. It further observes that investigation into this
complaint was completed within three months, during which the
authorities obtained a forensic expert report concerning the
applicant’s injuries and the statements of the police officers
who had detained him and had been on duty at the police station where
the applicant had been remanded.
- As
to the thoroughness of the investigation, the Court recalls that in
his decision not to institute criminal proceedings of 9 January 2004
the prosecutor relied on the evidence given by the suspect police
officers and their superior, which was obtained in the course of the
investigation by the internal security office of the Interior
Department. The prosecutor did not make any reference either to the
available forensic medical report concerning the applicant’s
injuries or to the statements made by the parties in the context of
the criminal proceedings against the applicant. The Court recalls
that it has previously found that an investigator’s undue
reliance on the evidence given by the State officials involved in
alleged wrongdoing and failure to examine witnesses did not comply
with the standards of a thorough and independent investigation (see,
mutatis mutandis, Ergi v. Turkey, 28 July 1998, §
83-84, Reports 1998 IV).
- However,
the Court takes special cognisance of the fact that in the instant
case the prosecutor’s refusal to institute criminal proceedings
in respect of the applicant’s alleged ill-treatment was
reviewed by a domestic tribunal which examined most of the material
disregarded in the prosecutor’s analysis of the incident.
Dismissing the applicant’s complaint, the District Court based
its conclusion on the findings of the criminal proceedings against
him, the applicant’s mother’s concession at the hearing
that the applicant had received some physical injuries before arrival
of the police (see paragraph 25 above), and the material collected
during the internal police inquiry. The applicant did not complain
that he had not personally been questioned in the proceedings
concerning his complaint of ill-treatment or that his mother’s
representation of him in the court proceedings had been defective.
There is nothing in the circumstances of the present case to indicate
the existence of any resulting prejudice to the applicant’s
interests.
- The
Court observes that, considering the domestic procedure in its
entirety, the authorities carried out the investigative measures that
could have been reasonably expected of them, including obtainment of
forensic and witness evidence and questioning of the alleged victim
and suspects.
- Regard
being had to the above, the Court considers that the authorities’
response to the applicant’s complaint of ill-treatment did not
amount to a failure at effective investigation. Accordingly, it finds
that there has been no violation of Article 3 under its procedural
limb.
II. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3
(D) OF THE CONVENTION
- The
applicant complained under Article 6 of a violation of his right to
fair trial in the criminal proceedings against him in view of the
court’s refusal to summon the attesting witnesses P. and K. or
to strike out the evidence obtained with their assistance as
improperly drawn up. The Court will consider the present complaint
under Article 6 §§ 1 and 3 (d) of the Convention, which
read as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
“Everyone charged with a criminal offence has the
following minimum rights:
... to examine or have examined witnesses against him
and to obtain the attendance and examination of witnesses on his
behalf under the same conditions as witnesses against him ...”
Admissibility
1. The parties’ submissions
- The
Government submitted that the complaint was manifestly ill founded
and should be rejected in accordance with Article 35 § 3 (a) of
the Convention. They further stated that the court had refused to
summon witnesses P. and K. because it had not discovered any
procedural irregularities in relation to the inspection of Ms G.’s
handbag and the drawing up of the inspection record. The defence had
not pointed out any irregularities in the inspection record apart
from the unconfirmed data on the witnesses’ employment or place
of residence, nor had it identified any violations of a substantial
nature. Finally, the inspection record had not been used as principal
evidence against the applicant but rather had served as proof of the
damage that could have been sustained by the victim had the criminal
act been completed.
- The
applicant maintained his complaint.
2. The Court’s assessment
- The
Court reiterates that the admissibility of evidence is primarily a
matter for regulation by national law and as a general rule it is for
the national courts to assess the evidence before them. The Court’s
task under the Convention is to ascertain whether the proceedings as
a whole, including the way in which evidence was taken, were fair
(see, among other authorities, Doorson v. the Netherlands, 26
March 1996, § 67, Reports 1996 II, and Van
Mechelen and Others v. the Netherlands, 23 April 1997, § 50,
Reports 1997 III). In determining whether the proceedings
were fair, regard must be had to whether the rights of the defence
were respected. It must be examined in particular whether the
applicant was given the opportunity of challenging the authenticity
of the evidence and of opposing its use (Bykov v. Russia [GC],
no. 4378/02, § 90, 10 March 2009). Finally, Article 6 does
not grant the accused an unlimited right to secure the appearance of
witnesses in court and it is normally for the national courts to
decide whether it is necessary or advisable to hear a witness (see,
among many other authorities, Bricmont v. Belgium, 7 July
1989, § 89, Series A no. 158).
- Turning
to the circumstances of the present case, the Court observes that P.
and K. had been called on to attest to the inspection of the alleged
victim’s handbag and its contents. They did not make any
depositions during the pre-trial investigation and did not seem to be
in a position at that moment or later to give any evidence that could
have corroborated or refuted the applicant’s guilt. Having
regard to the evidentiary basis of the applicant’s conviction,
the Court agrees with the Government that the record of inspection of
the objects belonging to the victim or the decision to include them
in the body of evidence were not decisive for the outcome of the
proceedings.
- The
Court further observes that the domestic court examined the
applicant’s requests to summon the attesting witnesses and to
strike out the record and decision drawn up with their assistance and
came to the conclusion that neither was necessary for fair
consideration of the case. The Court is satisfied that the applicant
was able to challenge in court admissibility of the evidence
presented by the prosecution and does not detect a valid reason to
depart from the findings of the domestic tribunal.
- It
follows that this complaint is manifestly ill-founded and should be
rejected in accordance with Article 35 §§ 3 (a) and 4 of
the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant also submitted a number of complaints under Articles 5
and 6 of the Convention related to his arrest and trial.
- Having regard to all the material in its possession,
and in so far as these complaints fall within its competence, the
Court finds that they do not disclose any appearance of a violation
of the rights and freedoms set out in these provisions. It follows
that this part of the application must be rejected as being
manifestly ill-founded, pursuant to Article 35 §§ 3
(a) and 4 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints concerning ill treatment
in police custody and the lack of an effective investigation thereof
admissible and the remainder of the application inadmissible;
- Holds that there has been no violation of
Article 3 of the Convention on account of the applicant’s
alleged ill treatment by the police;
- Holds that there has been no violation of
Article 3 of the Convention on account of the authorities’
failure to carry out an effective investigation into the applicant’s
complaints.
Done in English, and notified in writing on 14 February 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
