In the case of Nasakin v. Russia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Isabelle Berro-Lefèvre, President,
Elisabeth Steiner,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Ksenija Turković,
Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 25 June 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
22735/05) 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 Lev Viktorovich Nasakin (“the
applicant”), on 10 June 2005.
The applicant, who had been granted legal aid,
was represented by Mr Ye. Selyukov, a lawyer practising in Krasnodar. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative
of the Russian Federation at the European Court of Human Rights.
In the first letter of 10 June 2005, the
applicant alleged, in particular, that he had been subjected to ill-treatment
in police custody and that the ensuing investigation had not been effective. In
the letter of 12 January 2008, the applicant further alleged that his pre-trial
detention had been unlawful and unreasonably long; that neither he nor his
lawyer had been given the opportunity to attend a hearing on the review of his
pre-trial detention on 6 November 2007; and that his conviction had been based on
self-incriminating statements he had made under duress.
On 8 April 2009 the application was communicated 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 1945 and lives in Krasnodar.
A. The applicant’s
arrest and alleged ill-treatment
On 25 August 2003 B. was found dead by the Kuban river. On 26 August 2003 the district prosecutor’s office opened a criminal
investigation into B.’s murder.
On 29 August 2003 the applicant attended at the
police station for questioning. He explained that he had discovered B.’s body
on 25 August 2003 in the yard of his summer cottage. There had been a knife
next to the body. According to the applicant, he had panicked, thrown away the
knife, put B.’s body into the sidecar of his motorcycle, taken it to the river and
left it there. Later he had realised that he had made a mistake and gone back
to the river. The body was not there. The applicant had spoken to lawyer M.,
who had advised him to contact the police. According to the applicant, he was
handcuffed and taken to an office where five police officers beat him for
several hours, ordering him to confess to B.’s murder. The applicant alleged
that the officers hit him with rubber truncheons on his feet, legs, stomach,
chest and the back of his head. They allegedly tortured him with electricity and
threatened to rape and kill him and his family members. When his resistance was
worn down, the applicant wrote a confession statement, prompted by the police
officers. He reiterated his confession, in the lawyer’s presence, on 31 August
2003.
From 29 to 31 August 2003 the applicant was held
in an overcrowded cell at the police station, allegedly without food or water.
The police officers allegedly continued threatening the applicant, offering to
secure his release in exchange for 10,000 US dollars.
On 1 September 2003, at 6.10
p.m., the police officers took the applicant to a hospital, where he was
examined by the doctor on duty, who documented an infected wound on his chest.
The doctor treated the wound and concluded that the applicant was fit for
detention. The applicant was then transferred to a temporary detention centre.
B. Ensuing investigation
On 5 September 2003 the applicant’s lawyer
complained to the prosecutor’s office about the applicant’s ill-treatment in
police custody.
On 8 September 2003
investigator G. of the prosecutor’s office ordered a forensic medical
examination of the applicant, which was conducted immediately. On the same day,
the investigator refused to institute criminal proceedings against the police
officers, relying on their statements, in which they denied having put any
pressure on the applicant when questioning him.
On 11 September 2003 the applicant’s daughter
lodged a complaint with the prosecutor’s office about the applicant’s
ill-treatment in police custody. The applicant lodged a similar complaint on 25
September 2003.
On 23 September 2003 the
forensic expert completed the report concerning the applicant’s injuries. In
particular, the expert stated as follows:
“[The applicant] has a striated abrasion on the chest which
measures 6 centimetres in length and 2.5 centimetres in width and is covered
with a sanious yellow [crust] ... [There is] an injury having an irregular oval
form and measuring 1.5 centimetres in length and 0.5 centimetres in width on
the external surface of the upper third of the left leg, [the injury] is
covered with a dry dark brown crust ... [There is] a round abrasion measuring
0.6 centimetres in diameter on the front surface of the upper third of the left
leg; [the injury] is covered with a dark brown crust ... [There is] an abrasion
on the back surface of the left foot; [the abrasion] has an irregular oval
form, measures 2 centimetres in length and 1 centimetre in width and is under a
red brown crust ... The skin around [the abrasion] is oedematous and reddish.
No other injuries have been discovered ...
...
On the basis of the data from the forensic medical expert
examination of [the applicant] [I] reach the following conclusions in response
to the questions put:
[The applicant] has sustained
the following injuries:
- an abrasion on the front surface of the chest, an abrasion of
the left foot [caused] up to 1 day before the expert examination;
- abrasions on the leg [caused] 3-4 days before the
examination.
The above-mentioned injuries were caused by blunt solid objects
and did not cause damage [to the applicant’s] health.”
On 30 September 2003 the decision of
8 September 2003 was quashed and the materials were sent for further examination.
The supervising prosecutor noted as follows:
“The decision [of 8 September 2003] was not substantiated.
No inquiry ... was in fact conducted. [The investigator] questioned only the
police officers; [the applicant], his lawyer and [the applicant’s daughter]
were not questioned. Their allegations were not confirmed or refuted.
Accordingly the said decision must be quashed.”
On 8 October 2003 the regional prosecutor’s
office instituted criminal proceedings against the police officers on charges
of abuse of power.
The investigator questioned the applicant, his
daughter, the two lawyers representing the applicant, the guards at the police
station, certain persons who had been detained with the applicant at the police
station, and the alleged perpetrators. The applicant named two of the police
officers who had taken part in the beatings and claimed that he would be able
to identify the others if given the opportunity.
On 11 March 2004 the applicant underwent another
forensic medical examination. In the report, issued on 26 March 2004, the
experts confirmed that at the time of the first examination the applicant had
had an infected wound on the chest, two abrasions on the left leg and abrasions
on the left foot. They concluded that the injuries had been caused by solid
blunt objects and could have been sustained “in the circumstances and on the
dates detailed by the applicant”. The experts also noted that the injuries on
the left foot could have resulted from electrocution.
On 7 May 2004 investigator P.
closed the criminal investigation against the police officers. He relied on the
statements of the alleged perpetrators, who stated that they “had tried to
convince” the applicant to confess to the murder. They fiercely denied that any
force or pressure had been used against him. They also stated that the
applicant had had no visible injuries. The senior investigator also included in
his decision statements by a number of police officers and arrestees who had
seen the applicant between 29 August and 1 September 2003. The officers
and arrestees, except for one person, stated that the applicant had had no
visible injuries and that he had not made any complaints about the alleged
beatings. One of the arrestees confirmed that the applicant had had an injury
on his chest and that he had complained that the police officers had tortured
him. On the basis of that evidence, the investigator concluded as follows:
“[The applicant] indicates that he was beaten up by police
officers of the Crime Detection Unit of the Prikubanskiy District Police
Department in Krasnodar and thus that the statements in which he confessed to B.’s
murder, a crime which he had not committed, were obtained under duress.
However, it is necessary to take into account that in the materials of the case
file concerning the charge against [the applicant] there is sufficient evidence
to prove [the applicant] guilty of a particularly serious criminal offence - murder;
the criminal case was sent to the trial court to be examined on the merits, and
the materials of the present criminal case do not contain sufficient evidence
to prove [the police officers] guilty of committing an offence in respect of
[the applicant]. The forensic medical expert examinations performed ... came to
mutually exclusive conclusions. The conclusions of the additional forensic
medical examination in respect of the time and origin of [the applicant’s]
injuries are hypothetical. The witnesses’ statements, save for those made by
lawyer P. and [the applicant’s] daughter, do not confirm that unlawful
investigative measures or unlawful arrest were used in respect of [the
applicant] and [do not confirm] any of the other circumstances described by
[the applicant].
...
In such circumstances, the [applicant’s] allegations about the
offence committed against him have not been substantiated. It follows that
there are no grounds to indict [the police officers] on criminal charges. Their
guilt of committing the criminal offence of [abuse of power] is not confirmed
by the evidence collected.”
On 6 December 2004 the Oktyabrskiy District
Court of Krasnodar quashed the decision of 7 May 2004 and remitted the matter
for further investigation. In particular, the court indicated as follows:
“Having examined the materials in the criminal case file and
compared them with the arguments proffered by [the applicant], the court
concludes that [the decision of 7 May 2004] was premature. The statements
made by [the police officers under investigation] are contradictory.
Furthermore, not all investigative measures ... were carried out.”
On 9 March 2005 the Krasnodar Regional Court,
acting on an appeal by the prosecutor, quashed the decision of 6 December 2004
and remitted the matter for fresh examination to the District Court.
On 20 June 2005 the District Court upheld the
decision of 7 May 2004, reasoning as follows:
“As has been established ..., on 8 October 2003 the [regional prosecutor’s
office] opened [a criminal investigation] in respect of [the police officers]
who had allegedly caused injuries to [the applicant].
In the course of the investigation of the criminal case ...,
all investigative actions were carried out. The witnesses and [the alleged
perpetrators], and ... were questioned. Forensic medical expert examinations
were conducted. However, no circumstances which objectively confirmed that the
police officers had used physical force against [the applicant] were
established.
Moreover, on 19 November 2004 [the applicant] was convicted ...
; [the applicant’s] confession statement served as the basis for [the
conviction].
The court cannot take into account [the applicant’s] argument
that he made the confession statement as a result of unlawful ... measures taken
against him by the police officers ... . Those arguments were refuted in the
course of the [applicant’s] trial as contradictory to the actual circumstances
of the case.”
On 12 October 2005 the Krasnodar Regional Court
upheld the decision on appeal, endorsing the reasoning of the District Court.
C. Criminal proceedings against the applicant
1. First conviction on 19 November 2004
On 1 September 2003 the Prikubanskiy District
Court of Krasnodar authorised the applicant’s detention pending the investigation
noting as follows:
“The applicant is suspected of a particularly serious criminal
offence, and, if released, might abscond or interfere with administration of
justice”.
On 25 October 2003 the Leninskiy District Court
of Krasnodar extended the applicant’s detention until 30 November 2003. The
court reasoned as follows:
“The information pertaining to the circumstances of the case, the
progress of investigation and the [applicant’s] character shows that the
investigation cannot be completed within two months and that there are no
grounds to change or lift the preventive measure imposed on [the applicant].”
On 30 November 2003 the Leninskiy District
Court extended the applicant’s detention until 30 December 2003. The court
noted as follows:
“The fact that [the applicant] is charged with a particularly
serious criminal offence and that neither he nor his defence lawyer has so far
studied the materials of the case file shows that the investigation cannot be
completed within three months. There are no grounds to change or lift the
preventive measure imposed on the [applicant].”
According to the Government, on 16 February 2004
the Prikubanskiy District Court held a preliminary trial hearing of the case
and ruled, inter alia, that the applicant should remain in custody
pending trial. It again extended the applicant’s detention on 22 June and 23 August
2004.
On 19 November 2004 the Prikubanskiy District
Court found the applicant guilty of murder and sentenced him to six years’
imprisonment. The District Court based its decision on, inter alia, the
confession statements given by the applicant between 28 August and 1 September
2003. As regards the applicant’s arguments that those statements had been made
under duress, the court stated as follows:
“The court considers that [the applicant’s] argument that his
initial statements made in the lawyer’s presence did not correspond to the
factual circumstances as [those statements] had been extracted by the use of
unlawful methods of criminal investigation, is farfetched [and was] made in
order to evade the punishment for the crime committed.
The [applicant’s] allegations were examined during the
pre-trial investigation and were not confirmed; which fact was indicated in the
[investigator’s] decision ... of 7 May 2004 to discontinue the criminal
proceedings concerning ... [the police officers who had allegedly subjected the
applicant to ill-treatment] ... .”
On 9 February 2005 the Krasnodar Regional Court
upheld the applicant’s conviction on appeal.
On an unspecified date the applicant was transferred
to correctional colony no. IK-2 in the Krasnodar Region to serve his prison
sentence.
2. Supervisory review and re-trial
Approximately two and a half years after the
applicant’s conviction, on 19 July 2007, the Presidium of the Krasnodar
Regional Court quashed, by way of supervisory review, the judgments of 19
November 2004 and 9 February 2005 and remitted the matter for a retrial. The
decision of 19 July 2007 was silent on the issue of the applicant’s
detention. The applicant remained in custody.
On 6 November 2007 the Prikubanskiy District
Court fixed the preliminary trial hearing for 14 November 2007 and ruled
that “[the applicant] should be remanded in custody [pending trial]”. Neither
the applicant nor his lawyer attended the hearing.
On 14 November 2007 the District Court listed
the trial for 26 November 2007. As regards the applicant’s detention, the
court held that “the preventive measure applied to [him] should remain
unchanged”. The court also dismissed an application by the applicant for
release.
On 28 November 2007 the Regional Court upheld
the decision of 14 November 2007 on appeal.
On 21 February 2008 the Prikubanskiy District
Court found the applicant guilty of manslaughter and sentenced him to two years’
imprisonment. The court dismissed the applicant’s allegations that initially he
had confessed to the crime because of the undue pressure put on him in the
police custody as unsubstantiated. The court took into account the period the
applicant had already spent in detention and released him on his own
recognisance. Neither the applicant not the prosecutor appealed against that
judgment.
D. Civil proceedings initiated by the applicant
The applicant brought a civil action against the
regional prosecutor’s office and the Regional Treasury, seeking compensation
for non-pecuniary damage sustained as a result of his allegedly unlawful arrest
and detention, ill-treatment by the police, and conviction.
On 5 August 2008 the Pervomayskiy District Court
of Krasnodar dismissed the applicant’s action, finding that he had been convicted
by a final judgment on 21 February 2008 and sentenced to two years’
imprisonment. Despite the fact that the trial court had changed the initial classification
of the criminal offence from murder to manslaughter, the applicant had not
acquired the right to rehabilitation as his guilt was proven beyond reasonable
doubt. The District Court also noted that the applicant’s complaint about the
alleged ill-treatment in police custody was unsubstantiated.
On 18 November 2008 the Krasnodar Regional Court
upheld the judgment on appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Investigation of criminal
offences
. In
response to a complaint alleging a criminal offence, the investigator is under
an obligation to verify the complainant’s allegations (Article 144 of the new
CCrP).
. Should
there be sufficient grounds to believe that a crime has been committed, the
investigator initiates a criminal investigation (Article 145 of the new CCrP).
B. Pre-trial detention
. Article
108 of the CCrP provides that detention may be ordered by a court if the charge
carries a sentence of at least two years’ imprisonment, provided that a less
restrictive preventive measure cannot be applied. An appeal may be lodged with
a higher court within three days against a judicial decision ordering or
extending detention. The appeal court must decide on the appeal within three
days of its receipt.
. Article
376 of the CCrP provides that the parties must be notified about the date, time
and venue of the appeal hearing no later than fourteen days before it. The
court shall decide whether the detainee should be summoned to the hearing.
. On
22 January 2004 the Constitutional Court
delivered decision no. 66-O on a complaint about the Supreme Court’s refusal to permit a
detainee to attend the appeal hearings on the issue of detention. It held:
“Article 376 of the Code of Criminal Procedure
regulating the presence of a defendant remanded in custody before the appeal
court ... cannot be read as depriving the defendant held in custody ... of the
right to express his opinion to the appeal court, by way of his personal
attendance at the hearing or by other lawful means, on matters relating to the
examination of his complaint about a judicial decision affecting his
constitutional rights and freedoms ...”
As regards the pre-trial
detention of a defendant in criminal proceedings following the quashing of his
conviction by way of supervisory review, the Constitutional Court of the
Russian Federation stated in its Ruling No. 4-P of 22 March 2005 as follows:
“The lack of an explicit indication in [the applicable provisions
of the Russian Code of Criminal Procedure] that a supervisory-review court, when
quashing a verdict and remitting the matter for fresh consideration to a trial,
appeal or cassation court, must decide whether a preventive measure should be applied
[to a defendant] does not relieve the supervisory-review court of the
obligation to rule on that issue. It should rely on the general provisions of [the Russian Code of Criminal Procedure] in
accordance with which, once a conviction becomes final, a preventive measure imposed earlier ceases to be effective. The quashing of the conviction does not automatically entail
its automatic reinstatement. In order to [remand the defendant in custody] anew,
the court, in the presence of the interested parties, must determine the actual
circumstances of the case which justify his remand in custody in view of the new
stage of the criminal proceedings.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE
CONVENTION
The applicant complained under Articles 2, 3 and
13 of the Convention that he had been severely beaten while in police custody,
and that the ensuing investigation had not been effective. The Court will
examine the applicant’s grievances under Articles 3 and 13 of the Convention,
which read as follows:
Article
3
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
Article
13
“Everyone whose rights and freedoms as set forth in [the]
Convention are violated shall have an effective remedy before a national
authority notwithstanding that the violation has been committed by persons
acting in an official capacity.”
The Government contested the applicant’s
argument. In their view, his allegations of ill-treatment had been subject to
thorough examination by the competent domestic authorities, who had found no
case to answer against the alleged perpetrators.
The applicant maintained his complaints that he
had been subjected to torture and degrading treatment while in police custody and
that the ensuing investigation had not been effective.
A. Admissibility
The Court notes that the applicant’s complaints
are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that they are not inadmissible on any other
grounds. They must therefore be declared admissible.
B. Merits
1. Alleged ill-treatment in custody
(a) General principles
. The
Court has held on many occasions that the authorities have an obligation to
protect the physical integrity of persons in detention. Where an individual is
taken into custody in good health but is found to be injured at the time of
release, it is incumbent on the State to provide a plausible explanation of how
those injuries were caused (see Ribitsch v.
Austria, 4 December 1995, § 34, Series A
no. 336; see also, mutatis mutandis, Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII).
. The
Court reiterates that allegations of ill-treatment must be supported by
appropriate evidence. 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 Labita
v. Italy [GC], no. 26772/95, § 121, ECHR 2000-IV). 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 Ribitsch, cited above, § 34, and Salman, cited above, § 100).
. The
ill-treatment must attain a minimum level of severity if it is to fall within
the scope of Article 3. The assessment of this minimum is
relative: it depends on all the circumstances of the case, such as the duration
of the treatment, its physical and/or mental effects and, in some cases, the
sex, age and state of health of the victim. In respect of a person deprived of
his liberty, 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 (see Assenov and Others v. Bulgaria, 28 October 1998, § 94, Reports
of Judgments and Decisions 1998-VIII).
(b) Application of the
principles to the present case
. The Court observes that on 1 September 2003,
that is, two days after the applicant’s arrest, the applicant was given a
medical examination and it was established that he had a chest wound (see
paragraph 9 above); on 8 September 2003 a forensic medical expert confirmed
that the applicant had a chest wound and certain injuries on his left leg and
foot (see paragraphs 11 and 13 above).
. The
Court further notes the applicant’s argument, not contested by the Government,
that he did not have any injuries prior to his arrest. In such circumstances,
the Court concludes that it was incumbent on the national authorities to
provide a satisfactory and convincing explanation as to the cause of the
applicant’s injuries.
. In
this connection, the Court notes that neither the competent national authorities
in the course of the domestic proceedings nor the Government before the Court
attempted to proffer any explanation as to the cause of the applicant’s
injuries. Accordingly, the Court considers that the Government have failed to
rebut the presumption of their responsibility for the injuries inflicted on the
applicant while in the charge of the State. They have not satisfactorily
established that the applicant’s injuries were caused otherwise than -
entirely, mainly, or partly - by the treatment he underwent while in
police custody. It follows that the responsibility for the ill-treatment lies
with the domestic authorities.
. The
applicant maintained that the ill-treatment to which he had been subjected
amounted to torture. The Government did not comment. The Court observes that
the applicant sustained multiple injuries to his chest, left leg and foot. The
injuries must have caused him mental and physical suffering. Moreover, it
appears that the use of force was aimed at debasing the applicant, driving him
into submission and making him confess to a criminal offence. Therefore, the
Court finds that the treatment to which the applicant was subjected was
sufficiently serious to be considered inhuman and degrading within the meaning of
Article 3 of the Convention.
. It follows that there has been a violation of
Article 3 of the Convention under its substantive limb.
2. Investigation into the allegations of ill-treatment
(a) General principles
The Court reiterates that where an individual
raises an arguable claim that he has been seriously ill-treated by the police
or other such agents of the State unlawfully and 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
[its] jurisdiction the rights and freedoms defined in ... [the] Convention”,
requires by implication that there should be an effective official
investigation. This investigation should be capable of leading to the
identification and punishment of those responsible (see Assenov and Others,
cited above, § 102).
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
and Mahmut Kaya v. Turkey, no. 22535/93, § 124, ECHR 2000-III).
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 (see Assenov
and Others, cited above, §§ 103 et seq.). They must take all
reasonable steps available to them to secure the evidence concerning the
incident, including eyewitness
testimony and forensic evidence (see, mutatis
mutandis, Salman,
cited above, § 106; Tanrıkulu
v. Turkey [GC], no. 23763/94, §§ 104 et seq., ECHR 1999-IV; and
Gül
v. Turkey, no. 22676/93, § 89, 14 December 2000). 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.
Furthermore, the investigation must be
expeditious. In cases examined under Articles 2 and 3 of the Convention,
where the effectiveness of the official investigation is at issue, the Court
has often assessed whether the authorities reacted promptly to the complaints
at the relevant time (see Labita,
cited above, §§ 133 et seq.). Consideration has been given to the starting
of investigations, delays in taking statements (see Timurtaş
v. Turkey, no. 23531/94, § 89, 2000-VI, and Tekin v.
Turkey, 9 June 1998, § 67, Reports of Judgments and Decisions
1998-IV), and the length of time taken to complete the initial
investigation (see Indelicato
v. Italy, no. 31143/96, § 37, 18 October 2001).
(b) Application
of the principles to the present case
The Court observes
that the Russian authorities did carry out an investigation into the applicant’s
allegations. It is not convinced, however, that the investigation was
sufficiently prompt, thorough and effective to meet the requirements of Article
3 of the Convention.
. The
Court notes that the materials submitted by the parties disclose a number of
significant omissions in the way the investigation was conducted.
. It
appears that the national authorities, and in particular the administration of
the temporary detention centre where the applicant was taken on
1 September 2003, were aware that the applicant had sustained serious
injuries. However, they took no action in this connection. It was only after a
complaint by applicant’s lawyer that an investigator at the prosecutor’s office
opened an inquiry into the applicant’s allegations. The Court observes that the
investigator opened and closed the inquiry within one day, without putting any time
or effort into elucidating the circumstances of the applicant’s detention in
police custody. It was only two months later that the prosecutor’s office
opened an official investigation into the applicant’s allegations. Accordingly,
the Court considers that the authorities’ response to the applicant’s complaint
was belated.
. As
regards the scope of the inquiry, the Court notes that the investigation
carried out by the authorities did not take into account the forensic medical evidence
corroborating, to a certain extent, the applicant’s allegations of
ill-treatment. When discontinuing the criminal investigation, the investigator
merely stated that the conclusions of the forensic medical experts as regards
the time and cause of the applicant’s injuries were mutually exclusive (see
paragraph 18 above). At no time did he try to resolve
the inconsistencies between the experts’ findings by ordering an additional
forensic medical examination or questioning the forensic experts or the medical
personnel who had attended to the applicant.
Lastly, the Court observes that the subsequent
judicial review of the investigator’s findings did not remedy the deficiencies in
the investigation. Courts at two levels of jurisdiction merely upheld the investigator’s
decision to discontinue the criminal investigation. In this regard, the Court also
notes that when upholding the investigator’s decision the judicial authorities referred
to the evidence relied on for the applicant’s conviction of 19 November
2004, as upheld on appeal on 9 February 2005, and in his verdict the trial
judge, when refuting the applicant’s allegations of ill-treatment, had
based his findings on the investigator’s decision of 7 May 2004. The Court
finds such circular reasoning unacceptable.
The
foregoing considerations are sufficient to enable the Court to conclude that
the investigation into the applicant’s complaint of ill-treatment in
police custody cannot be considered to have been “effective”. There has
therefore been a violation of Article 3 of the Convention under its
procedural limb.
3. Effective remedy in respect of the applicant’s
grievances under Article 3 of the Convention
The Court further notes that
the applicant’s complaint under Article 13 of the Convention concerns the
same issues as those examined in paragraphs 60-65 above under the procedural limb of Article 3 of the
Convention. However, having regard to its conclusion above under Article 3 of
the Convention, the Court considers it unnecessary to examine these issues
separately under Article 13 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
The applicant complained that his pre-trial detention
had been unlawful. He referred to Article 5 § 1 of the Convention, which, in so
far as relevant, reads as follows:
“1. Everyone has the right to liberty and security
of person. No one shall be deprived of his liberty save in the following cases
and in accordance with a procedure prescribed by law:
...
(c) the lawful arrest or detention of a person
effected for the purpose of bringing him before the competent legal authority
on reasonable suspicion of having committed an offence or when it is reasonably
considered necessary to prevent his committing an offence or fleeing after
having done so[.]”
A. Admissibility
In so far as the applicant’s
complaint concerns the lawfulness of his pre-trial detention from his arrest on
29 August 2003 to his conviction on 19 November 2004, the Court notes that
this complaint was lodged on 10 June
2005. It follows that this part of the application has been introduced out of
time and must be rejected in accordance with Article 35 §§ 1 and 4 of the
Convention.
As regards the complaint concerning the alleged
unlawfulness of the applicant’s pre-trial detention from 19 July 2007 to 21 February
2008, the Court considers 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. The parties’ submissions
The Government considered that the applicant’s
pre-trial detention from 19 July 2007 to 21 February 2008 in question had been
compatible with Article 5 § 1 (c) of the Convention. Referring to the
Constitutional Court’s Ruling No. 4-P of 22 March 2005 (see paragraph 43 above),
they nevertheless conceded that on 19 July 2007 the Presidium of the Krasnodar
Regional Court, when quashing the applicant’s conviction by way of supervisory
review and remitting his case for fresh consideration to the trial court,
should have authorised the applicant’s pre-trial detention or released him
pending trial. However, the Government stated that the whole of the period the
applicant had spent in custody awaiting the determination of the criminal
charges against him had been taken into account by the domestic judicial
authorities when determining the length of the applicant’s sentence.
The applicant maintained his complaint.
2. The Court’s assessment
. The
Court reiterates that the expressions “lawful” and “in accordance with a
procedure prescribed by law” in Article 5 § 1 essentially refer back to
national law and state the obligation to conform to the substantive and
procedural rules thereof. It is in the first place for the national
authorities, notably the courts, to interpret and apply domestic law. However,
since under Article 5 § 1 failure to comply with domestic law entails a breach
of the Convention, it follows that the Court can and should exercise a certain
power to review whether this law has been complied with (see, among numerous
other authorities, Benham v. the United Kingdom, 10 June 1996, §§ 40-41 in
fine, Reports of Judgments and
Decisions 1996-III).
(a) Detention from 19 July to 6 November 2007
The Court observes that on 19
July 2007 the Presidium of the Regional Court quashed the applicant’s
conviction by way of supervisory review and remitted the matter for fresh
consideration to the trial court. The question as to the applicant’s detention
or release pending trial was not considered by the Presidium. As a result, the
applicant remained in custody in the absence of any detention order until 6 November
2007.
In this connection, the Court takes into account
the Government’s submission that it was incumbent on the Presidium, as a matter
of law, to rule on the issue of the applicant’s detention pending a new trial.
75. It follows that the
applicant’s detention from 19 July to 6 November 2007 was not “lawful” or “in
accordance with a procedure prescribed by law”. There has accordingly been a
violation of Article 5 § 1 of the Convention.
(b) Detention from 6 November 2007 to
21 February 2008
The
Court observes that during the period between 6 November 2007 and 21 February
2008, on two occasions - that is, on 6 and 14 November 2007 - the
Prikubanskiy District Court ruled that the applicant should remain in custody pending
the new trial.
. In
this connection the Court reiterates that a court’s decision to maintain a
custodial measure does not breach Article 5 § 1 provided that the trial court
“acted within its jurisdiction ... [and] had the power to make an appropriate
order”. However, “the absence of any grounds given by the judicial authorities
in their decisions authorising detention for a prolonged period of time may be
incompatible with the principle of the protection from arbitrariness enshrined
in Article 5 § 1 (see Khudoyorov v. Russia, no. 6847/02, § 135 in fine, ECHR 2005-X (extracts)).
. The
Court accepts that on 6 and 14 November 2007 the District Court acted
within its powers in deciding to maintain the applicant’s detention pending a
new trial. However, the Court cannot but notice that the District Court failed
to indicate any reason or set a time-limit when ordering the applicant’s
detention. As a result, the applicant remained unaware of the grounds for his
detention during the period under consideration. The District Court’s failure
to give reasons for its decision was made all the more regrettable by the
fact that the applicant had by then spent over three and a half months in
custody without a valid judicial decision (see paragraphs 73-75 above).
. Having
regard to the above, the Court considers that the District Court’s decisions of
6 and 14 November 2007 did not comply with the requirements of clarity,
foreseeability and protection from arbitrariness which together constitute the
essential elements of the “lawfulness” of detention within the meaning of
Article 5 § 1.
. Accordingly, the Court considers that in the
present case there has been a violation of Article 5 § 1 of the Convention on
account of the applicant’s detention from 6 November 2007 to 21 February 2008.
III. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
The applicant complained that his pre-trial
detention had been unreasonably long. He relied on Article 5 § 3 of the
Convention, which, in so far as relevant, reads as follows:
“Everyone arrested or detained in accordance with the
provisions of paragraph 1 (c) of this Article shall be ... entitled to trial
within a reasonable time or to release pending trial. Release may be
conditioned by guarantees to appear for trial.”
. The Court observes that in the present case the
applicant’s pre-trial detention comprised two distinct periods: (1) from 29 August
2003, when the applicant was arrested pending criminal investigation against
him, to 19 November 2004, when he was convicted by the Prikubanskiy
District Court at the first level of jurisdiction, and (2) from 19 July 2007,
when the Presidium of the Regional Court quashed the verdict and the appeal
judgment, to his conviction on 21 February 2008 by the District Court. In
between those two periods the applicant’s first conviction became final, when
upheld by the appellate court on 9 February 2005, and the applicant, for
approximately two and a half years, served a prison sentence.
. The
Court considers that the issue in the present case is whether the two periods
of the applicant’s pre-trial detention can be assessed cumulatively. The Court
answers this question in the negative. It considers that the present case
should be distinguished from a situation where an
applicant continued to be deprived of liberty pending an appeal hearing, the
conviction subsequently being quashed on appeal (see, for example Solmaz
v. Turkey, no. 27561/02, §§ 34-37, 16 January 2007). In the Court’s
view, the fact that the applicant’s conviction became final once upheld on
appeal and he started serving a prison sentence had the
effect of triggering the application of the six-month rule referred to in
Article 35 § 1 in respect of the first period of his pre-trial detention (see, mutatis
mutandis, Idalov v. Russia [GC], no. 5826/03, §§ 127-33, 22 May 2012).
. Having
regard to the above, the Court finds, similarly to Idalov, that the
six-month rule should be applied, separately, to each period of pre-trial
detention. Accordingly, the Court cannot consider whether or not the first
period was compatible with the Convention. The applicant’s complaint should be
declared inadmissible as being lodged out of time. However, as it follows from
the Idalov judgment (Idalov, cited above, § 130), the fact that an
applicant has already spent time in custody pending the same set of criminal
proceedings, should, in a given case, be taken into account by the Court in its
assessment of the sufficiency and relevance of the grounds justifying the
subsequent period of pre-trial detention, which the Court is competent to
examine.
. In the circumstances of the present case, the Court
considers that the applicant’s complaint under Article 5 § 3 of the Convention
in respect of his detention from 19 July 2007 to 21 February 2008 is
not manifestly ill-founded within the
meaning of Article 35 § 3 (a) of the Convention. As it is not inadmissible on
any other grounds, the Court will declare it admissible. However, having regard
to its earlier finding under Article 5 § 1 of the Convention
that this period of detention was unlawful, the Court finds no need to examine
the issue under Article 5 § 3 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 5 § 4
OF THE CONVENTION
The applicant alleged that neither he nor his
lawyer had attended the detention hearing of 6 November 2007. He referred
to Article 5 § 4 of the Convention, which reads as follows:
“Everyone who is deprived of his liberty by arrest or detention
shall be entitled to take proceedings by which the lawfulness of his detention
shall be decided speedily by a court and his release ordered if the detention
is not lawful.”
In the circumstances of the case and in view of
the Court’s earlier finding that the applicant’s pre-trial detention from 19
July 2007 to 21 February 2008 has been unlawful, the Court does not
consider it necessary to examine separately the applicant’s grievances under
Article 5 § 4 of the Convention.
V. ALLEGED VIOLATION OF ARTICLE 6 OF THE
CONVENTION
. The applicant complained under Article 6 of the
Convention that the criminal proceedings against him had been unfair. In
particular, he alleged that his conviction had been based, inter alia,
on confessions he had made under duress while in police custody. Article 6 § 1
of the Convention, in so far as relevant, reads as follows:
“In the determination of ... any criminal
charge against him, everyone is entitled to a fair ... hearing ... by [a] ...
tribunal ...”
A. Admissibility
. The Court observes that the applicant’s first
conviction on the charge of murder, as upheld on appeal, was quashed by way of
supervisory review on 19 July 2007 and his case was remitted for a new consideration
to the trial court which reclassified the charges and found the applicant
guilty of manslaughter on 21 February 2008.
. The
Court further observes, and the parties did not argue to the contrary, that the
applicant did not appeal against his conviction by the court at the first level
of jurisdiction of 21 February 2008. Accordingly, there is a ground to
consider that he has failed to exhaust the available domestic remedies.
However, under Rule 55 of the Rules of Court, any plea of inadmissibility must
be raised by the respondent Contracting Party in its written or oral
observations on the admissibility of the application. Accordingly, the normal
practice of the Convention organs has been, where a case has been communicated
to the respondent Government, not to declare the application inadmissible for
failure to exhaust domestic remedies, unless this matter has been raised by the
Government in their observations (see K. and
T. v. Finland [GC], no. 25702/94, § 145,
ECHR 2001-VII; N.C. v. Italy [GC], no. 24952/94, § 44, ECHR 2002-X; and Rydz
v. Poland, no. 13167/02, § 72, 18 December 2007).
. It
follows that, despite the Court’s well-established case-law that an appeal
against a conviction by a court at the first level of jurisdiction is viewed as
an effective remedy for a complaint under Article 6 in connection with the
criminal proceedings, the applicant’s complaint in this respect cannot be
rejected by the Court on the ground that the domestic remedies have not been
exhausted.
. The
Court notes that this part of the application 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. The parties’ submissions
. The
Government submitted that the trial court had thoroughly examined all the
evidence before it. The court’s findings had not been based exclusively on the
applicant’s confessions given in police custody. And, in any event, the
applicant’s allegations of coerced confession had been subject to thorough
examination by the domestic authorities and dismissed as unsubstantiated.
. The
applicant maintained his complaint. He claimed that he had not been advised of
his right not to incriminate himself on the day of his arrest or during the
subsequent questioning by the investigator.
2. The Court’s assessment
. The
Court reiterates that it is not the role of the Court to determine, as a matter
of principle, whether particular types of evidence - for example, evidence
obtained unlawfully in terms of domestic law - may be admissible. The question
which must be answered is whether the proceedings as a whole, including the way
in which the evidence was obtained, were fair. This involves an examination of
the unlawfulness in question and, where the violation of another Convention
right is concerned, the nature of the violation found (see Gäfgen v. Germany [GC], no. 22978/05,
§ 163, ECHR 2010).
. Furthermore,
particular considerations apply in respect of the use in criminal proceedings
of evidence obtained in breach of Article 3. The use of such evidence, secured
as a result of a violation of one of the core and absolute rights guaranteed by
the Convention, always raises serious issues as to the fairness of the
proceedings, even if the admission of such evidence was not decisive in
securing a conviction (see Gäfgen, cited above, § 165).
. The
Court has found in earlier cases, in respect of confessions as such, that the
admission of statements obtained as a result of torture (compare Örs and Others v. Turkey,
no. 46213/99, § 60, 20 June 2006; Harutyunyan
v. Armenia, no. 36549/03, §§ 63, 64 and 66,
ECHR 2007-III; Levinţa v. Moldova, no. 17332/03, §§ 101 and 104-05, 16 December 2008; Hajnal
v. Serbia, no. 36937/06, § 113, 19 June
2012; and Grigoryev v. Ukraine, no. 51671/07, § 84, 15 May 2012),
or of other ill-treatment in breach of Article 3 (see Söylemez v. Turkey, no. 46661/99, §§
107 and 122-24, 21 September 2006, and Iordan Petrov v.
Bulgaria, no. 22926/04, § 136,
24 January 2012), as evidence in establishing the
relevant facts in criminal proceedings rendered the proceedings as a whole
unfair. This finding applied irrespective of the probative value of the
statements and irrespective of whether their use was decisive in securing the
defendant’s conviction (ibid.).
. In
the present case, the Court notes that the self-incriminating statements made
by the applicant following his arrest and placement in police custody formed
part of the evidence adduced against him. The trial court did not find the
statements inadmissible and referred to them when finding the applicant guilty
and convicting him.
. The
Court further notes that it has already established that the applicant was
subjected to ill-treatment whilst in police custody, that is, when he was
questioned and made statements implicating himself in the crime with which he
was subsequently charged (see paragraphs 51-55 above).
. In
such circumstances, the Court is not convinced by the Government’s argument
that the applicant’s confessions should be regarded as having been given
voluntarily. It concludes that, regardless of the impact the applicant’s
statements obtained under duress had on the outcome of the criminal proceedings
against him, such evidence rendered the criminal proceedings unfair. There has,
accordingly, been a violation of Article 6 § 1 of the Convention.
VI. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly, the applicant complained under Article 3
of the Convention about the conditions of his detention at the police station
from 29 August to 1 September 2003. Referring to Article 5 of the
Convention, he alleged that there had been no grounds for his arrest on
29 August 2003, and that he had not been informed of the reasons for his
arrest or brought promptly before a judge. He complained under Article 6
of the Convention of numerous procedural violations by the national courts, and
of the unreasonable length of the criminal proceedings against him. He further
complained under Article 8 of the Convention about the allegedly poor
quality of the medical care available during his pre-trial detention, and of interception
of his letters by the prison administration. He complained under Article 9
of the Convention that he had been denied visits by a priest during his
pre-trial detention. Lastly, he alleged a violation of Article 2 of
Protocol No. 7.
Having regard to all the
material in its possession, and in so far as they fall within its competence, the
Court finds that the above complaints 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
manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the
Convention.
VII. 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 1,627,782.30 Russian
roubles (RUB) in respect of pecuniary damage, including lost earnings and
damage to and loss of his real and movable property, as well as damage to his
health, and 43,000 euros (EUR) in respect of non-pecuniary damage.
The Government considered the applicant’s
claims excessive and unreasonable.
The Court does not discern any causal link
between the violations found and the pecuniary damage alleged; it therefore
rejects this claim. As regards the applicant’s claims in respect of
non-pecuniary damage, the Court observes that it has
found a combination of serious violations in the present case. Making its
assessment on an equitable basis, the Court awards the applicant EUR 15,000 in
respect of non-pecuniary damage, plus any tax that may be chargeable on this
sum.
B. Costs and expenses
The applicant did not
submit any claims for costs and expenses. Accordingly, the Court makes no award
under this head.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaints concerning the applicant’s ill-treatment in police custody, the
ineffectiveness of the ensuing investigation, the unlawfulness, excessive
length and review of his pre-trial detention from 19 July 2007 to
21 February 2008, and the use of the coerced confession during the
criminal proceedings against him admissible and the remainder of the
application inadmissible;
2. Holds that there has been a violation of
Article 3 of the Convention under its substantive limb on
account of the applicant’s ill-treatment in police custody;
3. Holds that there has
been a violation of Article 3 of the Convention under its procedural limb on account
of the authorities’ failure to carry out an effective investigation into the
applicant’s allegations of ill-treatment in police custody;
4. Holds that there is no need to examine the
complaint under Article 13 of the Convention;
5. Holds that there has been a violation of
Article 5 § 1 of the Convention in respect of the applicant’s pre-trial
detention from 19 July 2007 to 21 February 2008;
6. Holds that there
is no need to examine the complaint under Article 5 § 3
of the Convention;
7. Holds that there
is no need to examine the complaint under Article 5 §
4 of the Convention;
8. Holds that there has been a
violation of Article 6 § 1 of the Convention on account of the unfairness of
the criminal proceedings against the applicant;
9. Holds
(a) that the respondent State is to pay the applicant,
within three months of the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, EUR 15,000 (fifteen
thousand euros), to be converted into the currency of
the respondent State 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;
10. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 18 July 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Isabelle
Berro-Lefèvre
Registrar President
