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FIRST
SECTION
CASE OF
MEDOV v. RUSSIA
(Application
no. 1573/02)
JUDGMENT
STRASBOURG
8 November
2007
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 Medov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr L. Loucaides, President,
Mrs F.
Tulkens,
Mrs N. Vajić,
Mr A. Kovler,
Mr K.
Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and
Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 11 October 2007,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
- The
case originated in an application (no. 1573/02) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Mr Suleyman Akberdovich
Medov (“the applicant”), on 20 December 2001.
- The
applicant, who had been granted legal aid, was represented by Mr M.
Ferschtman, a lawyer practising in Amsterdam. The Russian Government
(“the Government”) were initially represented by
Mr P. Laptev, the former Representative of the Russian
Federation at the European Court of Human Rights, and subsequently by
their Representative, Mrs V. Milinchuk.
- The
applicant alleged, in particular, that between January and May 2000,
while in detention on criminal charges, he had been subjected to
ill-treatment in breach of Article 3 of the Convention. He also
claimed an absence of effective domestic remedies and referred to
Article 13 of the Convention.
- By
a decision of 7 September 2006 the Court declared the application
partly admissible.
- The
Chamber having decided, after consulting the parties, that no hearing
on the merits was required (Rule 59 § 3 in fine), the
parties replied in writing to each other's observations.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1958. Formerly a resident of
Grozny, Chechnya, he is currently living in Ingushetia.
- The
facts of the case are partially in dispute between the parties. Their
submissions are summarised below in Part A. A summary of the
documents submitted by the parties is set out in Part B and a summary
of other relevant documents in Part C below.
A. Submissions of the parties
1. The applicant's arrest
- The
applicant is married and has three children. He and his family lived
in the Staropromyslovskiy district of Grozny, in a settlement
referred to by the local residents as Karpinka. The applicant
submitted the following account of the events.
- On
23 January 2000 the applicant and his extended family were in the
basement of a neighbours' house at Krasnovodskaya Street, because
their house at 21 Volodarskaya Street had been burnt down. At
approximately 2 p.m. a group of servicemen of the troops of the
Ministry of the Interior came to the basement to carry out an
identity check. The applicant and seven other men from the same
basement and from a nearby building were rounded up by the soldiers
and taken to the garages in the neighbourhood. The applicant's wife
and sisters went there and unsuccessfully sought his release.
- Later
that day the applicant and other detainees were taken to the
encampment of a tank division near a place called Solyonaya Balka,
situated 2-3 kilometres from Karpinka. The applicant and other
detainees were made to sit on the ground near the tanks. The soldiers
threatened to kill them in retribution for the death of General
Mikhail Malofeyev, who had been killed in Grozny several days
earlier. The applicant and others were briefly spoken to by General
Troshev, the military commander of the Russian forces in Chechnya,
who was at the encampment to collect the General's body. He told them
that after the identity check, and on condition that their documents
were in order, they would be released.
- However,
later that day the applicant and other detainees were placed together
in an anti-tank pit in the ground in the open field and left there
overnight. The soldiers beat and kicked the applicant and other
detainees, and while they were in the pit, threw rocks and poured
cold water over them. The temperature that night was about minus 3
degrees Celcius. Around midnight the applicant and other detainees
were allowed to sit near a campfire and were given some food.
- On
24 January 2000 the detainees were driven to the Khankala military
base, the headquarters of the United Group Alignment (UGA) in
Chechnya. They were ordered into a small lorry used for transporting
prisoners (“avtozak”). The applicant was hit by a
rifle butt by a soldier when boarding the lorry. Upon arrival at
Khankala, they were moved into another lorry where the applicant
spent approximately twenty-four hours.
- According
to the Government, the applicant was apprehended on 23 January
2000 under suspicion of having participated in an attack on federal
servicemen which had occurred on 4 October 1999 in the village of
Chervlenaya, in the Shelkovskoy District of Chechnya. As a result of
the attack, fifteen servicemen were killed and twenty-eight were
wounded. The attack was investigated under criminal case file
no. 14/03/0547-99/49064.
- The
Government submitted that the applicant's allegations of
ill-treatment between 23 and 25 January 2000 could not be verified,
because all records had been destroyed and because it was impossible
to identify and question the military servicemen who had participated
in the operations in question.
2. The applicant's detention in Chernokozovo
- On
25 January 2000 the applicant was taken to the Chernokozovo detention
centre, where he was kept in cells nos. 8 and 17. The applicant
submitted that in cell no. 8, which was meant for five persons,
he had been kept with about twenty other detainees. In cell no. 17
the applicant had been kept with about forty persons.
- The
applicant stated that during his stay in Chernokozovo he had been
subjected to regular and particularly severe ill-treatment by the
guards. The applicant identified them as the special police forces
(OMON) from the Rostov-on-Don region. The guards who ill-treated him
were often drunk.
- In
particular, the applicant submitted that upon arrival he and other
detainees had been forced to run through a corridor of soldiers who
beat them with great force using rubber truncheons, rifle butts and
wooden hammers. While standing naked in the shower room the applicant
was also severely beaten. Some time later while in Chernokozovo the
applicant was hit with a rifle butt on the head so hard that it left
a deep wound on the left side of his head. The scar was still clearly
visible about three months later when the applicant was questioned by
an interviewer from the NGO Human Rights Watch (hereafter “HRW”)
in Ingushetia. As a result of the beatings the applicant sustained a
broken nose and fractured ribs, as well as bruises. The guards also
played humiliating “games”, such as riding on the
applicant who had been forced onto his hands and knees .
- The
applicant was formally interrogated four times. During the
interrogations he was beaten. The interrogators tried to force him to
sign a confession of participation in an illegal armed group, a crime
under Article 208 of the Criminal Code. The applicant denied having
committed any crimes and refused to sign the document. He was shown
an electric chair and threatened with the application of electric
shock.
- In
addition, the applicant was on several occasions “informally”
questioned by the guards, who beat him and tried to obtain a
confession.
- The
applicant later recounted the conditions of his detention and
ill-treatment at Chernokozovo to an HRW interviewer, and his
testimony under the name of “Aslanbek Digayev” was
included in their report “Welcome to Hell: Arbitrary Detention,
Torture and Extortion in Chechnya” of October 2000.
- The
Government in their submissions confirmed that between 25 January
and 18 February 2000 the applicant had been detained at pre-trial
detention centre IZ 4/2 in Chernokozovo. His detention had been
ordered on 28 January 2000 by an investigator of the General
Prosecutor's Office Department for the Northern Caucasus and
authorised by the acting Prosecutor for the Republic of Chechnya (the
Chechnya Prosecutor). On the same day the applicant had been formally
charged with committing a crime under Article 208 part 2 of the
Criminal Code – participation in an illegal armed group. On 28
January 2000 the decree authorising his arrest had been read out to
him and he had been advised of his procedural rights, including the
right to appeal. On the same day the applicant was questioned about
the charges and opted to remain silent, in accordance with Article 51
of the Constitution. He refused to sign any procedural documents or
to give testimony. The applicant filed no appeals or motions related
to the charges brought against him or the arrest warrant.
- The
Government submitted that upon admission to the pre-trial detention
centre the applicant had undergone a medical examination, which
revealed a bruise on his left shoulder. The Government submitted a
copy of the register of new arrivals kept by the detention centre,
which did not indicate any other injuries or health problems in
respect of the applicant. The page contained eight entries, some of
them with details of wounds, burns and diseases for other prisoners.
While detained in detention centre IZ 4/2 the applicant had not
applied for medical assistance and no separate medical record had
been opened for him.
- The
Government submitted documents issued in October 2004 by the
pre-trial detention centre IZ 20/2, located in Chernokozovo, which
stated that it had become operational in August 2000 (presumably
replacing pre-trial detention centre IZ 4/2) and that it therefore
had no information concerning the conditions of detention of the
applicant or whether physical force had been used on him.
- Another
letter issued by pre-trial detention centre IZ 20/2 stated that the
applicant had been detained in IZ 4/2 between 25 January 2000 and
29 April 2000 (sic) and that no personal file had been opened
for him. Instead, an “informal record card” (карточка
неустановленного
образца)
had been kept, a copy of which was submitted by the Government (see
Part B below).
3. The applicant's subsequent detention in Mozdok,
Pyatigorsk and Stavropol
- The
applicant submitted that on 18 February 2000, along with twelve men
and three women, he had been taken to Mozdok in North Ossetia. The
detainees spent the night in a railway carriage. The applicant was
taken to a shower room outside the carriage, made to undress and
beaten and kicked by the guards.
- On
20 February 2000 the applicant was taken to the pre-trial detention
centre “SIZO no.2” in Pyatigorsk in the Stavropol Region.
He submitted that upon admission he had been superficially examined
by a doctor who had asked whether he had any complaints. The
applicant, who felt intimidated by the presence of the guards, did
not make any complaints, even though he submitted that his bruises
and an unhealed wound on his head should have been evident.
- The
Government stated that the applicant's allegations of ill-treatment
during transportation from Chernokozovo to Pyatigorsk were impossible
to verify in the absence of the relevant records.
- The
applicant stated that while in SIZO no. 2 he had been severely
beaten by the guards on his way to the shower room, when he and other
detainees had been forced to run naked. He had also been beaten in
the bathroom.
- On
22 February 2000 the applicant was taken to Stavropol to the
pre-trial detention centre IZ 26/1 (“SIZO no.1”). Upon
arrival the applicant was again briefly examined by a doctor in the
presence of the guards. Subsequently, the applicant was subjected to
the same treatment as in Chernokozovo and in Pyatigorsk – he
was forced to run through a corridor of soldiers who beat him. He was
then forced to get into an ice-cold bath.
- While
in Stavropol, the applicant was interrogated only once by officials
who did not introduce themselves. They wore uniforms with badges of
the Ministry of Justice. The interrogators beat him and tried to
force him to confess to having committed crimes under Article 208 of
the Criminal Code. The applicant refused to sign a confession.
- The
Government confirmed that between 22 February and 3 May 2000 the
applicant had been detained at the pre-trial detention facility
IZ 26/1 in Stavropol. Upon arrival he had undergone a medical
examination which had revealed no injuries or particular health
problems. He did not submit any complaints about his medical
conditions either. He did not seek any medical assistance, did not
submit any complaints about ill-treatment or conditions of detention
and was not subjected to any disciplinary measures while in SIZO no.
1.
- In
support of their position the Government submitted a number of
documents, which showed that the applicant had been subjected to a
medical examination upon arrival and that no injuries or diseases had
been recorded. On the same day he underwent a fluorography of the
chest and blood tests, which did not reveal any health problems. He
submitted no complaints about his health or injuries while in
detention. The Government submitted a copy of the detention centre's
register of new arrivals and a copy of the applicant's medical record
(see Part B below).
- During
his stay in SIZO no. 1 the applicant stayed in cell no. 79.
The Government submitted a detailed description of the cell and gave
details of the applicant's conditions of detention in that facility,
supported by relevant records and testimonies of the supervising
officers, produced in 2001 during a prosecutor's investigation into
the applicant's complaints. They stated that the cell was intended to
hold ten persons, but had not held more than nine. The applicant and
other detainees were supplied with bedding, food and items of
personal hygiene in accordance with the relevant standards. They were
taken to the shower room once a week. The detention facility stated
that no disciplinary measures or physical force had been applied to
the applicant during his stay there. He had received no visits from
relatives, lawyers or investigators while in the SIZO.
4. The applicant's release and domestic investigation
- On
3 May 2000 the applicant was released from custody in Stavropol. Upon
release he was provided with a document issued by the Ministry of the
Interior which stated that he had been detained from 23 January
to 3 May 2000 and that the criminal proceedings against him had
been dropped under State Duma Decree no. 4785-11 of 13 December 1999
“on amnesty for persons who had committed dangerous acts
against public order during the anti-terrorist operation in the
Northern Caucasus”. The measure of restraint was lifted. The
applicant stated that his passport had not been returned to him.
- The
following day the applicant joined his family in Ingushetia.
According to affidavits produced by his wife, sister-in-law and an
interviewer from HRW, upon release the applicant showed signs of
severe physical abuse and mental trauma and it took him about six
months to recover from the injuries he had sustained while in
detention.
- The
applicant's wife submitted that the applicant had lost weight
significantly, that he had numerous bruises and scars on his body and
head, that he had difficulty breathing, and for several months had
difficulty in performing the simplest of exercises. She and the
applicant's sister-in-law, who had some basic knowledge of first aid
and who treated the applicant upon his release, submitted in addition
that the applicant was nervous and depressed, had trouble sleeping,
and could not stand noise. They both stated that the deterioration of
the applicant's health was due to the ill-treatment received while in
detention, and that before that the applicant had been healthy.
- On
7 December 2000 the applicant lodged a complaint with the Grozny Town
Prosecutor's Office. He stated the circumstances of his arrest and
detention, and stated that he had been beaten and ill-treated while
in detention in Grozny, Khankala, Chernokozovo, Mozdok, Pyatigorsk
and Stavropol. As a result of the beatings he had suffered a broken
nose, two broken ribs and a wound to his head. The applicant
requested that the prosecutor carry out an investigation into his
complaints and award him compensation for the damage sustained.
- On
21 December 2000 HRW wrote a letter to the Prosecutor General on the
applicant's behalf. They briefly reiterated the circumstances of the
applicant's arrest and detention and requested that criminal
proceedings in respect of the credible allegations of severe
ill-treatment and torture be instituted. A copy of the letter was
sent to Mr Kalamanov, the Special Envoy of the Russian President in
the Chechen Republic for rights and freedoms, who forwarded the
letter to the Stavropol Regional Prosecutor's Office.
- On
21 February 2001 the Pyatigorsk Town Prosecutor's Office informed the
applicant of its decision not to open criminal proceedings in
relation to his complaint of ill-treatment and of the possibility to
appeal against that decision to the Town Court.
- On
12 March 2001 the applicant underwent an informal medical examination
in Ingushetia. The doctor, who remained anonymous, noted a scar of
about 10 centimetres long on the left side of the applicant's head,
signs of a healed fracture of three ribs on the left side, apathy and
anxiety. He concluded that the applicant was suffering from the
consequences of a head trauma, broken ribs, astheno-neurotic syndrome
and phobias. The applicant later explained that he could not register
with a doctor in Ingushetia, because he had no passport, and that he
had eventually found a doctor from Chechnya who was staying in
Ingushetia and who agreed to give a consultation on informal terms.
- On
26 March 2001 HRW again wrote to the Prosecutor General, reminding
him of their earlier letter to which no reply had been received.
- On
20 April 2001 the Chechnya Prosecutor's Office replied to HRW that no
criminal prosecution would be initiated upon the applicant's
complaints since the investigation had showed that they lacked
grounds. The letter stated that on 20 February 2000 the applicant had
been examined by a doctor in SIZO no. 2 in Pyatigorsk and that
no injuries had been reported. Similarly, no relevant records had
been made on 22 February 2000 upon examination by a doctor in SIZO
no. 1 in Stavropol. While in SIZO no. 1 the applicant had
not sought medical assistance or been subjected to disciplinary
measures or physical coercion.
- On
27 April 2001 the Stavropol Regional Prosecutor's Office replied to
the letter forwarded to them by Mr Kalamanov. The letter referred to
the absence of recorded complaints or injuries in the medical files
made upon admission of the applicant to the detention centres and the
absence of any medical complaints during his detention. It also cited
the absence of records of disciplinary measures or physical coercion
applied in respect of the applicant. It was no longer possible to
interview his former cell-mates as cell population records were not
kept. The applicant's passport was not in his personal file. The
letter concluded that no violation of the applicant's rights had been
committed by the staff of the detention centres in Pyatigorsk and
Stavropol and thus it was decided not to initiate criminal
proceedings. On 15 May 2001 this information was sent to the HRW
office in Moscow.
- On
21 May 2001 the applicant was summoned as a witness by an
investigator of the Zavodskoy District Temporary Department of the
Interior (VOVD) in Grozny. No further information about the nature of
the proceedings was contained in the summons. The summons mentioned
that the applicant was obliged to present himself and to bring his
passport.
- On
22 May 2001 the applicant was examined by a doctor from Médecins
Sans Frontières in Nazran, Ingushetia. The doctor noted,
in French, a scar on the left side of his head and healed fractures
of the ribs and nose.
- On
23 May 2001 HRW wrote to the Prosecutor General and challenged the
outcome of the prosecutorial inquiries conducted upon their earlier
requests. They stated that the decision of the Stavropol Prosecutor's
Office not to initiate a criminal investigation was unfounded and
failed to answer most of the well-founded allegations brought by the
applicant, in particular, concerning torture and ill-treatment, the
legal grounds of his detention and confiscation of his passport.
- On
25 May 2001 HRW wrote to the Deputy Minister of Justice in an attempt
to clarify the situation of the cell population records. In
particular, it asked what kind of records were kept and for how long.
No reply to that letter has been received.
- On
14 June 2001 the Prosecutor General's Office forwarded HRW's letter
of 23 May 2001 to the Chechnya Prosecutor's Office.
- On
2 July 2001 the applicant wrote letters to the Grozny Prosecutor's
Office and the Zavodskoy District VOVD of Grozny in reply to their
summons. He explained that he resided in Ingushetia and that his
passport had been confiscated upon arrest in January 2000. He
therefore asked to be questioned in Ingushetia and gave his temporary
address there. Those letters were delivered in person by the
applicant's sister-in-law. Neither the Grozny Prosecutor's Office nor
the Zavodskoy VOVD replied to those letters or took any follow-up
action of which the applicant would be aware.
- On
10 July 2001 HRW again contacted the Prosecutor General. They
requested that the case-file from the Stavropol and Chechnya
Prosecutor's offices be retrieved, the decision of the Stavropol
Prosecutor's Office not to open criminal proceedings be reviewed and
a proper investigation be conducted. No reply to that letter was
received.
- On
16 July 2001 HRW wrote to the Minister of the Interior, asking him
which unit of the Ministry had conducted the passport check in the
settlement of Karpinka in Grozny on 23 January 2000. No reply to that
letter has been received.
- On
20 May 2003 the Stavropol Regional Prosecutor's Office sent to
lawyers at “Stichting Russia Justice Initiative”, a human
rights NGO office in Moscow, copies of orders of 21 February 2001 by
the Pyatigorsk Town Prosecutor's Office and of 20 March 2001 by the
Stavropol Town Prosecutor's Office.
- In
support of his submissions concerning ill-treatment and lack of an
effective investigation the applicant referred to a number of public
reports in relation to the situation in Chechnya (see Part C below).
- The
Government confirmed that on 3 May 2000 the criminal proceedings
against the applicant had been dropped in application of the Amnesty
Act of 13 December 1999 and that he had been released on the
same day.
- The
Government submitted that the medical report of March 2001 obtained
by the applicant had not been drawn up in conformity with the rules
applicable to these kind of documents and that the applicant had
failed to apply to a medical institution upon his release to obtain a
proper report. They also stressed the passage of a significant amount
of time – almost ten months after his release – before
the applicant had sought any medical help.
- Concerning
the investigation into the alleged ill-treatment, the Government
referred to the information received from the Prosecutor General's
Office. According to them, following the complaints brought on the
applicant's behalf by HRW, on 21 February 2001 the Pyatigorsk Town
Prosecutor's Office and on 20 March 2001 the Stavropol Town
Prosecutor's Office refused to initiate criminal proceedings upon the
applicant's complaints for absence of a criminal offence. Those
decisions had been taken following an inquiry conducted in accordance
with Article 109 of the Criminal Procedural Code then in force. The
applicant was advised of those decisions immediately, and again in
May 2003, upon an application by the NGO “Stichting Russian
Justice Initiative” brought on his behalf. The Government
submitted a number of relevant documents (see Part B below).
- The
Government also informed the Court that “in connection with the
dissolution of the Grozny Prosecutor's Office in 2003, no data
concerning the examination of this application has been kept.
According to the information provided by the Prosecutor's Office of
the Chechen Republic, no pre-investigative inquiries upon [the
applicant's] application have been carried out by the territorial
bodies of prosecutor's office from February 2000 up to the present
time”.
- As
to the applicant's passport, the Government stated that upon release
he had been issued with a standard reference form concerning his
detention and release. On the basis of that notice, on 31 July 2002
the Zavodskoy District Court of Grozny issued him with a passport.
The materials of the criminal case against the applicant contained no
reference to the alleged seizure of his passport.
B. Documents submitted by the parties
- Upon
the Court's requests, both parties submitted a number of documents
related to the applicant's arrest and the investigation into his
complaint of ill-treatment.
1. Documents related to the criminal case against the
applicant
- On
9 October 1999 military prosecutor of the Northern Caucasus Military
Prosecutor's Office opened a criminal investigation into the attack
by unidentified persons on a military unit near the village of
Chervlennaya in Chechnya, as a result of which fifteen servicemen had
been killed and twenty-eight wounded. The investigation was opened
with regard to Articles 208 part 2 of the Criminal Code (organisation
of an illegal armed group) and 105 part 2 (murder in aggravating
circumstances).
- On
23 January 2000 an officer of the rapid reaction police force (SOBR)
reported to the head of the police mobile unit that on that day the
applicant had been arrested in Grozny in Volodarskiy Street upon
suspicion of being involved in illegal armed groups.
- On
28 January 2000 the acting Chechnya Prosecutor authorised the
applicant's placement in detention upon suspicion of involvement in
illegal armed groups, a crime under Article 208 part 2 of the
Criminal Code.
- On
28 January 2000 in Chernokozovo the applicant was charged with
participation in an illegal armed group and, as noted on the copy of
the document, refused to accept the charges or sign the document. On
the same day he was questioned about the charges, but refused to
testify or to sign the transcript.
- On
3 May 2000 the acting Chechnya Prosecutor authorised application of
the Amnesty Act of 13 December 1999 to the applicant, as a member of
the illegal armed group who had not committed grave crimes. On the
same day the decision was announced to the applicant in Mozdok, North
Ossetia, and he signed a copy of it.
2. Documents related to the applicant's detention in
Chernokozovo
- The
Government submitted a copy of the “informal”
registration entry dated 28 January 2000. It stated that the
applicant had arrived at the detention facility on 25 January
2000, that he had been arrested on 25 January 2000 by the
Naurskiy (District) Prosecutor (sic) and that on 19 February
2000 he had been sent to the (pre-trial detention centre) SI-2 in
Pyatigorsk. The document further stated that the applicant had been
released on 29 April 2000 under the Amnesty Act of 13 December 1999.
- They
also submitted a copy of the medical register of new arrivals kept by
the detention centre and covering the period between 8 November
1999 and 12 February 2000. The entry for the applicant referred to a
bruise on the right shoulder and did not indicate any other injuries
or health problems. The page contained eight entries, some of them
with details of wounds, burns and diseases in respect of other
prisoners.
- In
addition, the Government produced several documents issued in October
2004 by the pre-trial detention centre IZ 20/2 in Chernokozovo which
stated that it had become operational in August 2000 (presumably
replacing pre-trial detention centre IZ 4/2) and that it therefore
had no information concerning the conditions of detention of the
applicant or whether physical force had been used on him.
- Another
letter issued by pre-trial detention centre IZ 20/2 stated that the
applicant had been detained in IZ 4/2 between 25 January 2000 and
29 April 2000 (sic) and that no personal file had been opened
for him. Instead, an “informal record card” (карточка
неустановленного
образца)
had been kept (see paragraph 65 above). While in detention in IZ 4/2
the applicant had not applied for medical assistance and no separate
medical record had been kept for him.
3. Documents related to the applicant's detention in
Pyatigorsk
- On
20 February 2000 at 9.30 p.m. a medical worker and two officers of
the IZ 21/2 detention centre in Pyatigorsk signed a medical form in
respect of the applicant, drawn up on his arrival. They noted no
injuries or traumas and found him fit for detention at the pre-trial
detention centre.
- In
February 2001 four officers of the detention centre and the medical
worker produced written statements. They stated that on 20 February
2000 the arrival, reception and allocation to the cells of the
detainees arriving from Vladikavkaz (eighty persons) had been carried
out in accordance with the internal regulations and that no incidents
had occurred. No injuries or health problems had been noted or
recorded in respect of the applicant. The medical worker noted, in
particular, that he was obliged by law to record any injuries for new
arrivals.
- On
21 February 2001 the deputy Prosecutor of Pyatigorsk, in the
Stavropol Region, issued a decision not to open criminal proceedings
into the applicant's complaints concerning ill-treatment. The order
referred to the letter from HRW which had alleged that in February
2000 the applicant had been placed in the IZ 21/2 detention centre in
Pyatigorsk and had been beaten there. The order stated that the Town
Prosecutor's Office had carried out an inquiry into that allegation
and found no factual grounds to support it. It read:
“Assistant to the officer in charge of the
pre-trial detention facility M. explained that on 20 February 2000 a
regular group of detainees had arrived from the town of Vladikavkaz
[North Ossetia]. Among the detainees there was a group of persons
from the pre-trial detention centre in Chernokozovo, Chechnya. Medov
S.A. was in that group.
After sanitary treatment all the detainees were placed
in transit cells at the pre-trial detention centre. The new arrivals
did not commit any offences, so no physical coercion or special
measures were applied to them, as provided by the Federal Law on the
Detention on Remand of Suspects and Persons Accused of Offences.
The medical worker of the detention centre V., who had
examined the detainees arriving from Vladikavkaz on 20 February 2000,
explained that a medical report had been drawn up for each detainee.
No physical coercion or special measures were used by the staff of IZ
21/2.
A copy of the medical record of Medov S.A. dated 20
February 2000 was attached to the results of the examination. The
medical examination took place on 20 February 2000 at 21 hours 30
minutes. No bodily injuries were noted. Medov S.A. remained in the
Pyatigorsk pre-trial detention centre for two days. On 22 February
2000 he was sent on to the pre-trial detention centre in Stavropol.
No complaints from Medov S.A. about the actions of the staff at the
detention centre have been submitted so far to the Pyatigorsk
prosecutor's office.
Thus, no evidence has been obtained to support the
allegations of beatings of Medov S.A. by the staff at the pre-trial
detention centre in Pyatigorsk.”
- The
information about the decision was sent to the Chechnya Prosecutor's
Office. On 21 February 2001 the Pyatigorsk Town Prosecutor's Office
informed the applicant about the decision and about the possibility
to appeal against it to the Town Court.
4. Documents related to the applicant's detention in
Stavropol
- On
22 February 2000 the applicant was examined on arrival at SIZO no. 1.
It was noted in the medical record that he did not have any injuries
or complaints, that his blood pressure and body temperature were
normal and that a psychiatric examination had found him healthy. A
number of examinations, including blood tests, showed an absence of
skin diseases, TB, AIDS and syphilis. In February 2001 the staff at
SIZO no. 1 forwarded the applicant's medical record to the Town
Prosecutor's Office.
- On
18 April 2001 the head of the medical unit of SIZO no.2 in Stavropol
issued a document to confirm that during his stay there the applicant
had not sought medical assistance.
- In
February 2001 deputy head of SIZO no.1 informed the Stavropol Town
Prosecutor's Office that that the applicant had been detained there
between 22 February and 3 May 2000. At the initial check-up no
complaints or injuries were noted and the applicant was found
healthy. During his stay he did not seek medical assistance, did not
submit any complaints about ill-treatment and was not subjected to
punishment or to physical coercion. The letter further stated that it
was impossible to identify the applicant's former cell-mates, because
no such lists had been kept, in accordance with the relevant
legislation. It further listed the officers of the SIZO who had at
the relevant time supervised cell no. 79, where the applicant
had been kept.
- In
March 2001 three officers of the detention centre testified to the
Town Prosecutor that they had received no complaints or questions
from the applicant between February and May 2000, while he had been
kept in cell no. 79, over which they had responsibility.
- On
20 March 2001 the Stavropol Town Prosecutor's Office issued a
decision not to open criminal proceedings into the applicant's
complaints concerning ill-treatment, in response to a letter from
HRW. The decision stated:
“Between 22 February and 3 May 2000 Medov S.A. was
detained in SIZO no. 1 of the Department of the Execution of
Sentences of the Ministry of Justice of the Stavropol Region. On 3
May 2000 he was released pursuant to the decision of the Department
of the Prosecutor General's Office in the Northern Caucasus on
application of the Amnesty Act of 13 December 1999. On arrival at
SIZO no.1 no passport was contained in Medov's personal file.
During his stay in SIZO no. 1 he did not complain about
being beaten by the staff at the SIZO, and was not subjected to any
punishment, physical coercion or special measures. According to the
notes in the medical record, upon admittance to the SIZO no bodily
injuries or illnesses were noted. During his detention he did not
submit any medical complaints or seek medical assistance.
In SIZO no. 1 Medov was detained in cell number 79.
According to the explanations of the staff who had supervised the
cell, Medov had not broken any internal rules or submitted any
complaints or requests. As no records of cell population are kept, it
is deemed impossible to question his former cellmates.
Thus, as a result of the investigation, no grounds were
found to support the allegations of use of physical force on Medov by
the staff at SIZO no. 1 and there is no evidence of any criminal act
on the part of the staff”
- The
information about the decision was forwarded to the “interested
parties” and the Stavropol Regional Prosecutor's Office.
C. Relevant Council of Europe reports
- The
Chernokozovo SIZO, where the applicant had been detained, has
received extensive attention from various human rights institutions,
including the European Committee for the Prevention of Torture (CPT),
on account of allegations of severe ill-treatment of detainees. On 4
March 2000 the Head of the CPT delegation Mr Hajek issued a statement
to Russian officials at the end of the visit of the CPT to the North
Caucasian region of the Russian Federation. The statement read, inter
alia, in relation to the visit to Chernokozovo:
“The delegation is satisfied that, at present,
persons detained in this establishment are not being physically
ill-treated. Further, although conditions of detention in the SIZO
leave much to be desired, the delegation has noted that genuine
efforts have been made in recent times - and continue to be made - to
improve those conditions.
However, the information gathered by the delegation
strongly indicates that many persons detained at Chernokozovo were
physically ill-treated in the establishment during the period
December 1999 to early February 2000. In different locations, the
delegation has interviewed individually and in private a considerable
number of persons who were held at Chernokozovo during that period. A
clear pattern of physical ill-treatment of prisoners by custodial
staff emerged. The ill-treatment alleged consisted essentially of
kicks, punches and truncheon blows to various parts of the body
(excluding the face). The ill-treatment was said to have been
inflicted principally in the central corridor of the detention
facility, usually when prisoners were taken to an investigator's room
for questioning or when they were returned to their cells after such
questioning; apparently, prisoners were also on occasion physically
ill-treated in the investigators' rooms. Investigators were said to
have been fully aware of the ill treatment being inflicted, and some
prisoners affirmed that it was inflicted at their instigation. In
certain cases, the delegation has gathered medical evidence which is
consistent with the allegations of ill-treatment made by the
prisoners concerned.
It is also noteworthy that practically all the prisoners
interviewed who had been held at the establishment in Chernokozovo
during the period January to February 2000 stressed that there had
been a distinct change for the better in early February, at the same
time as a changeover of staff began to occur. The beatings stopped;
further, other improvements had been made, in particular as regards
food. Moreover, no allegations of physical ill-treatment were made by
prisoners interviewed who had arrived in the establishment after the
first week of February 2000.”
- On
10 July 2001 the CPT issued a public statement concerning the
Chechen Republic, under Article 10 § 2 of the European
Convention for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment. This step was prompted by the Russian
authorities' failure to cooperate with the CPT in relation to two
issues: i) the carrying out of a thorough and independent inquiry
into the events in the detention facility at Chernokozovo during the
period December 1999 to early February 2000; ii) action taken to
uncover and prosecute cases of ill-treatment of persons deprived of
their liberty in the Chechen Republic in the course of the current
conflict. The statement said, in particular:
“... the information gathered by the CPT's
delegation in the course of its February/March and April 2000 visits
indicated that a considerable number of persons deprived of their
liberty in the Chechen Republic since the outset of the conflict had
been physically ill-treated by members of the Russian armed forces or
law enforcement agencies. In the report on those two visits, the CPT
recommended that the Russian authorities redouble their efforts to
uncover and prosecute all cases of ill-treatment of persons deprived
of their liberty in the Chechen Republic in the course of the
conflict. The Committee made a number of remarks of a practical
nature intended to clarify the precise form those efforts might take.
More generally, the CPT stressed that it was essential for the
Russian authorities to adopt a proactive approach in this area.
The response of the Russian authorities to this key
recommendation was very unsatisfactory...
As was stressed in a letter sent to the Russian
authorities on 10 May 2001, the CPT's concerns in this regard are all
the greater given that in the course of the Committee's most recent
visit to the Chechen Republic, in March 2001, numerous credible and
consistent allegations were once again received of severe
ill-treatment by Federal forces; in a number of cases, those
allegations were supported by medical evidence. The CPT's delegation
found a palpable climate of fear; many people who had been
ill-treated and others who knew about such offences were reluctant to
file complaints to the authorities. There was the fear of reprisals
at local level and a general sentiment that, in any event, justice
would not be done. It was emphasised to the Russian authorities that
they must spare no effort to overcome this deeply disturbing state of
affairs.”
II. RELEVANT DOMESTIC LAW
- The
Code of Criminal Procedure (CCP) of 1960, which was in force until
July 2002, contained the following provisions relating to the opening
of a criminal investigation.
- Article
108 provided that criminal proceedings could be instituted on the
basis of letters and complaints from citizens, public or private
bodies, articles in the press or the discovery by an investigating
body, prosecutor or court of evidence that a crime had been
committed.
- Article
109 provided that the investigating body had to take one of the
following decisions within a maximum period of ten days after being
notified of a crime: to open or refuse to open a criminal
investigation, or transmit the information to an appropriate body.
Those making the allegations were to be informed about any decision
made.
- Under
Article 113, if the investigating body refused to open a criminal
investigation, a reasoned decision had to be given. The informant was
to be notified of the decision and was entitled to appeal against it
to a superior prosecutor or to a court.
THE LAW
I. COMPLIANCE WITH THE SIX-MONTH RULE
- The Court reiterates at the outset that, pursuant to
Article 35 § 1 of the Convention, it may only deal with a matter
within a period of six months from the final decision in the process
of exhaustion. If no remedies are available or if they are judged to
be ineffective, the six-month period in principle runs from the date
of the act complained of (see Hazar and Others v. Turkey
(dec.), nos. 62566/00 et seq., 10 January 2002). Special
considerations may apply in exceptional cases where an applicant
first avails himself of a domestic remedy and only at a later stage
becomes aware, or should have become aware, of the circumstances
which make that remedy ineffective. In such a situation, the
six-month period may be calculated from the time when the applicant
becomes aware, or should have become aware, of those circumstances
(see Bulut and Yavuz v. Turkey (dec.), no. 73065/01, 28
May 2002).
- The Court further points out that it is not open to it
to set aside the application of the six-month rule solely because a
respondent Government have not made a preliminary objection based on
that rule, since the said criterion, reflecting as it does the wish
of the Contracting Parties to prevent past events being called into
question after an indefinite lapse of time, serves the interests not
only of respondent Governments but also of legal certainty as a value
in itself. It marks out the temporal limits of the supervision
carried out by the organs of the Convention and signals to both
individuals and State authorities the period beyond which such
supervision is no longer possible (see Walker v. the United
Kingdom (dec.), no. 34979/97, ECHR 2000-I).
- Turning to the present case, in so far as the
conditions of the applicant's detention are concerned, the Court
notes that from the materials in its possession it does not appear
that he attempted to raise this issue before the domestic authorities
either in his complaint of 7 December 2000, which was confined to his
allegations of ill-treatment, or on any other occasion. The Court
further finds it unnecessary to determine whether the applicant had
effective remedies in respect of the violation alleged, as even
assuming that in the circumstances of the present case no such
remedies were available to him, he was released from custody on 3 May
2000, whereas his application to this Court was lodged more than six
months later on 20 December 2001.
- It follows that the applicant's complaint concerning
the conditions of detention was lodged out of time, and therefore the
Court is unable to take cognisance of its merits.
II. THE GOVERNMENT'S PRELIMINARY OBJECTION AS TO
EXHAUSTION OF DOMESTIC REMEDIES
A. Arguments of the parties
- The
Government requested that the Court declare the complaint
inadmissible as the applicant had failed to exhaust domestic
remedies. The Government outlined several possible available legal
remedies.
- They
submitted that the applicant could have complained to a military
prosecutor concerning the actions of the servicemen who had guarded
him prior to his arrival at the pre-trial detention centre. He could
have complained of the conditions of detention to a prosecutor, but
he did not submit any complaints while in detention. It was also open
to the applicant to appeal to a court against the decisions of the
Pyatigorsk Town Prosecutor's Office of 21 February 2001 and of the
Stavropol Town Prosecutor's Office of 20 March 2001, which he failed
to do. Finally, it was open to the applicant to pursue civil
proceedings once he was released, either in Chechnya or in the
neighbouring regions.
- The
applicant disagreed with the Government's objection. Firstly, he
argued that there was an administrative practice of non-compliance
with the requirement to investigate effectively abuses committed by
Russian servicemen and members of the police in Chechnya. He referred
to complaints submitted to the Court by other persons claiming to be
victims of such abuses, who also complained about lack of effective
investigation. The applicant cited reports by human rights groups,
international organisations and the media on violations of civilians'
rights committed by federal forces and the subsequent lack of
effective domestic investigation.
- Secondly,
he invoked the existence of special circumstances as a result of
detention incommunicado. He explained that he had felt vulnerable,
powerless and apprehensive of the State representatives and therefore
had been unable to submit any complaints while in detention.
- He
maintained that in any event he had exhausted domestic remedies,
because upon release he had applied to the prosecutor with a request
to conduct an investigation into the allegations of ill-treatment. In
his opinion, a criminal investigation should have been regarded as a
proper remedy in view of the nature of his complaints and the
relevant case-law of the Court. Despite his efforts, no proper
investigation took place. His complaints were rejected without proper
examination, and his appeal to a higher ranking prosecutor remained
unanswered.
- Application
to the courts with a request for compensation could not, in his
opinion, be a proper remedy for the type of violations alleged, and
in any event would be futile in the absence of conclusions from the
criminal investigation.
B. The Court's assessment
- In the present case the Court took no decision about
the exhaustion of domestic remedies at the admissibility stage,
having found that this question was too closely linked to the merits.
It will now proceed to examine the arguments of the parties in the
light of the provisions of the Convention and its relevant practice.
The Court reiterates that the rule of exhaustion of domestic remedies
referred to in Article 35 § 1 of the Convention obliges
applicants to use first the remedies that are normally available and
sufficient in the domestic legal system to enable them to obtain
redress for the breaches alleged. Article 35 § 1 also
requires that the complaints intended to be brought subsequently
before the Court should have been made to the appropriate domestic
body, at least in substance, and in compliance with the formal
requirements laid down in domestic law, but not that recourse should
be had to remedies which are inadequate or ineffective (see Aksoy
v. Turkey, judgment of 18 December 1996, Reports of
Judgments and Decisions 1996-VI, pp. 2275-76, §§ 51-52,
and Akdıvar and Others v. Turkey, judgment of
16 September 1996, Reports 1996-IV, p. 1210,
§§ 65-67).
- In
the present case the applicant complained of several episodes of
ill-treatment, which were the subjects of separate domestic
investigations.
1. As regards the applicant's arrest and detention
between 23 January and 18 February 2000
- The
applicant complained of ill-treatment upon arrest on 23 January
2000 and detention in Chernokozovo between 25 January and 18 February
2000. His complaint of 7 December 2000 to the Grozny Town
Prosecutor's Office primarily referred to that period. However, it
appears that no separate investigation has been carried out by the
prosecutor's office and no procedural decision has been rendered. The
letter of 20 April 2001 sent to HRW by the Chechnya Prosecutor's
Office referred only to the investigation into the complaints in
relation to the applicant's detention in the pre-trial detention
centres in Pyatigorsk and in Stavropol. The Government in their
observations confirmed that there was no information about a separate
investigation into the applicant's complaints of ill-treatment in
Chechnya (see paragraph 57 above).
- In
such circumstances, the Court finds that the applicant could not
effectively challenge the outcome of proceedings in relation to his
complaints of ill-treatment upon arrest and during his detention in
Chernokozovo. The Government's argument that the applicant could have
appealed to a court or to a senior prosecutor is not applicable to
the present situation, where there was no investigation, no
procedural decisions and where the applicant was not made aware of
any results of any inquiries made.
- In
the light of the foregoing, the remedy advanced by the Government
cannot be considered as effective and having reasonable prospects of
success. The Court accordingly dismisses the preliminary objection in
so far as it relates to that part of the applicant's detention.
2. As regards the applicant's detention between 18
February and 3 May 2000
- As
regards the applicant's complaints about ill-treatment in the
pre-trial detention centres in Pyatigorsk and Stavropol, they were
examined by the local prosecutors. Following an investigation, on 21
February 2001 the Pyatigorsk Town Prosecutor decided not to institute
criminal proceedings. On 20 March 2001, also following an
investigation, the Stavropol Town Prosecutor took a similar decision.
Under Article 113 of the Code of Criminal Procedure, which was in
force at the material time, that decision was amenable to an appeal
to a higher prosecutor or a court of general jurisdiction (see
paragraph 84 above). While HRW on at least two occasions wrote to the
Prosecutor General (see paragraphs 46 and 50 above), the Government
pointed out that the applicant had not used the second avenue of
appeal.
- As regards appeal to a higher prosecutor, the Court
has already held on several occasions that an appeal to a higher
prosecutor does not give the person employing it a personal right to
the exercise by the State of its supervisory powers, and that such an
appeal does not therefore constitute an effective remedy within the
meaning of Article 35 of the Convention (see Slyusarev
v. Russia (dec.), no. 60333/00, 9 November 2006).
- The
position is, however, different with regard to the possibility of
challenging before a court of general jurisdiction a prosecutor's
decision not to investigate complaints of ill-treatment. In such
cases contentious proceedings are instituted, to which the applicant
and the prosecutor are parties. In public and adversarial proceedings
an independent tribunal is called upon to assess whether the
applicant has a prima facie case of ill-treatment and, if he has, to
reverse the prosecutor's decision and order a criminal investigation.
The Court has already found that in the Russian legal system, the
power of a court to reverse a decision not to institute criminal
proceedings is a substantial safeguard against the arbitrary exercise
of powers by the investigating authorities (see Trubnikov v.
Russia (dec.), no. 49790/99, 14 October 2003).
- In
the present case the applicant did not make use of the judicial
appeal option. He invoked in this respect the existence of an
administrative practice of non-investigation of complaints against
the actions of the “power structures” in Chechnya and
special circumstances resulting from his detention incommunicado. The
Court notes in this respect that the detention and the ill-treatment
in question occurred outside of Chechnya, and the applicant did not
allege that this administrative practice extended to other regions.
As regards the second argument, the Court notes that the applicant
was informed of the decisions of the relevant prosecutors' offices
more than a year after his release from detention.
- The
Court also notes that the applicant was assisted by a number of human
rights organisations, who intervened on his behalf before the
prosecutor's offices. No explanation has been offered for their
failure to lodge, or to advise the first applicant to lodge, a
judicial appeal against the prosecutors' decision not to investigate
his allegations of ill-treatment.
- In
the light of the above considerations, the Court finds that the
applicant's complaints concerning his alleged ill-treatment in
detention between 18 February and 3 May 2000 must be dismissed for
non-exhaustion of domestic remedies pursuant to Article 35 § 1
of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant alleged a violation of Article 3, which reads:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Alleged ill-treatment at the hands of the
authorities
1. Arguments of the parties
- The
applicant maintained that he had been subjected to torture while in
detention. He referred to his detailed submissions about the
ill-treatment, to the medical documents produced after his release
and to the witness statements which corroborated his account. He
alleged that the documents submitted by the Government could not be
regarded as conclusive evidence of the contrary, because some had
been issued in 2004 and the records kept in 2000 were not accurate.
Even these documents acknowledged that he had had a bruise on his
shoulder (his medical record made upon admission to Chernokozovo, see
paragraph 66 above). He also referred to reports by NGOs, Council of
Europe documents and other complaints brought to the Court that
denounced the widespread ill-treatment of detainees in Chechnya, and
particularly at the Chernokozovo detention centre.
- The
Government denied that the applicant had been subjected to unlawful
violence while in detention. They stated that he had been examined by
medical staff upon admission to the pre-trial detention centres in
Chernokozovo, Pyatigorsk and Stavropol and that no injuries had been
recorded apart from a bruise on his shoulder on 25 January 2000. They
stressed that the records showed that other detainees had had more
serious injuries recorded, which proved their accuracy (see paragraph
66 above). The applicant had not sought medical assistance while in
detention and had not submitted any complaints of ill-treatment. As
to the examinations carried out after his release, the Government
remarked that the applicant had only obtained a medical opinion in
March 2001, which was over ten months after his release from custody.
They pointed out that even that document was not a proper medical
expert's report but an anonymous “consultative opinion”.
The document drawn up on 22 May 2001 by a doctor from Médecins
Sans Frontières was in French only and in any case that
medical examination could not be considered official.
2. The Court's assessment
- The
Court reiterates that the authorities have an obligation to protect
the physical integrity of persons in detention. Where an individual,
when taken into police custody, is 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.
Otherwise, torture or ill-treatment may be presumed in favour of the
claimant and an issue may arise under Article 3 of the Convention
(see Tomasi v. France, judgment of 27 August 1992, Series
A no. 241-A, pp. 40-41, §§ 108-111, and Selmouni
v. France [GC], no. 25803/94, § 87, ECHR 1999-V).
- In
assessing evidence, the Court has generally applied the standard of
proof “beyond reasonable doubt” (see Ireland v. the
United Kingdom, judgment of 18 January 1978, Series A no. 25, pp.
64-65, § 161). However, 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 lying with the authorities to provide a
satisfactory and convincing explanation (see Ribitsch v. Austria,
judgment of 4 December 1995, Series A no. 336, § 34,
and Salman v. Turkey [GC], no. 21986/93, § 100,
ECHR 2000-VII).
- In
the present case the applicant alleged that as a result of
ill-treatment in Chernokozovo he had suffered a broken nose, a head
trauma, broken ribs and mental distress. In support of his
allegations the applicant referred to his own submissions, to the
witness statements of his relatives and to two unofficial medical
documents obtained ten and twelve months after his release. He also
referred to the publicly available information about the situation in
Chernokozovo at the relevant time, which spoke of the wide-spread
physical abuse of detainees and the absence of investigation into
credible allegations of ill-treatment. The Government questioned the
validity and relevance of the medical documents. They also referred
to the results of prosecutorial inquiries which revealed an absence
of recorded complaints or injuries in the three separate detention
facilities during the applicant's admission and detention.
- The
Court notes that the applicant did not seek medical assistance while
in detention, nor immediately upon release in Ingushetia, where he
resided at that time. This is at variance with the alleged
seriousness of his condition. The absence of a passport which, as he
claimed, had prevented him from having access to a doctor, could not
be an obstacle to seeking urgent medical assistance for such a
protracted period of time. In any event, the medical documents
obtained by him in March and May 2001 do not refer to the time or
circumstances when the noted scars and traumas could have been
caused. To the contrary, three medical reports drawn up while the
applicant was in detention, in the pre-trial detention centres in
Chernokozovo, Pyatigorsk and Stavropol, did not refer to any injuries
or complaints (see, a contrario, Chitayev and Chitayev v.
Russia, no. 59334/00, §§ 150-151, 18 January
2007).
- As to the applicant's reference to public reports
about the situation in Chernokozovo at the relevant time, it is true
that the Court can, in certain circumstances, take into account
reliable reports about the situation in a particular prison when
evaluating the conditions of detention (see, for an example of the
Court's taking into account of the reports of the CPT, Kehayov v.
Bulgaria, no. 41035/98, § 66, 18 January 2005).
However, it would be to seriously over-stretch such practice to apply
it to allegations of ill-treatment, in particular those as serious as
in the present case. The findings of the CPT or of any other relevant
body do not in themselves, and in the absence of evidence of
individual suffering of the intensity required for a finding of a
breach of Article 3, provide a basis for a conclusion that there has
been a breach of Article 3 of the Convention in the applicant's case.
- In
such circumstances, the principle evidence in support of the
applicant's allegations of ill-treatment remains his own statements
and the statements of his wife and sister-in-law. While they cannot
be considered entirely objective, the Court notes that the applicant
first complained to the prosecutors in December 2000, by which time
his former cell-mates could no longer be identified. The staff of the
detention centres in Pyatigorsk and Stavropol, including medical
workers, submitted to the prosecutors that they did not recall any
injuries to or complaints from the applicant, while the records for
other detainees contained more detailed entries.
- The
Court finds that on the basis of the evidence submitted by the
parties it cannot establish to the required standard of proof that
the applicant's injuries were sustained while he was in detention, in
the situation as described by him. It is also unable to conclude that
the applicant was subjected to ill-treatment at the hands of the
authorities while in detention between 23 January and 18 February
2000.
- Accordingly,
there has been no violation of Article 3 in this connection.
B. Alleged inadequacy of the investigation
- The
applicant argued that the investigation into his complaints of
ill-treatment did not attain the level of effectiveness required by
the Convention standards and the domestic legal provisions.
- The
Government retorted that the applicant's allegations of ill-treatment
were dismissed by the prosecutor's office as unfounded after a proper
verification.
- Where an individual raises an arguable claim that he
or she has been seriously ill-treated by the police 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. This investigation
should be capable of leading to the identification and punishment of
those responsible (see Assenov and Others, judgment of 28
October 1998, Reports 1998-VIII, p. 3290, § 102, and
Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV).
The minimum standards as to effectiveness defined by the Court's
case-law also include the requirements that the investigation must be
independent, impartial and subject to public scrutiny, and that the
competent authorities must act with exemplary diligence and
promptness (see, for example, Isayeva and Others v. Russia,
nos. 57947/00, 57948/00 and 57949/00, §§ 208-213, 24
February 2005).
- Turning
to the present case, the Court notes that in December 2000 the
applicant complained of ill-treatment to the Grozny Town Prosecutor's
Office. He referred to the injuries sustained by him and requested
that an investigation be carried out. The Court considers that the
applicant's complaints should have raised a reasonable suspicion that
his injuries could have been caused by representatives of the State
and that the matter should have been duly brought before the
competent authorities. The Court also considers that the publicly
available information about the widespread abuse in the Chernokozovo
detention centre at the relevant time put the relevant authorities
under a special obligation to conduct an effective investigation
satisfying the above-mentioned requirements of Article 3 of the
Convention.
- However,
the Court reiterates that it has already found that no investigation
has been carried out into the applicant's allegations of
ill-treatment upon arrest and during his detention in Chernokozovo
(see paragraph 97 above). The authorities submitted a number of
documents referring to the applicant's situation in Chernokozovo,
produced in 2004, in relation to the communication of the present
complaint by the Court; however, no investigation by a prosecutor has
been carried out in respect of that period of detention and no
procedural decision has been taken.
- In
such circumstances the Court is bound to conclude that the
authorities failed to carry out a thorough and effective
investigation into the applicant's arguable complaints of
ill-treatment while in detention. Accordingly, there has been a
violation of Article 3 of the Convention in this connection.
IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant submitted that he had had no recourse to effective remedies
against the violations, contrary to Article 13, which provides:
“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 submitted that the applicant had had effective remedies at
his disposal and notably that he could have challenged the alleged
violations of his rights before prosecutors or in a court, in
accordance with relevant domestic law.
- The Court reiterates that Article 13 of the
Convention guarantees the availability at national level of a remedy
to enforce the substance of the Convention rights and freedoms in
whatever form they might happen to be secured in the domestic legal
order. The effect of Article 13 is thus to require the provision of a
domestic remedy to deal with the substance of an “arguable
complaint” under the Convention and to grant appropriate
relief, although Contracting States are afforded some discretion as
to the manner in which they comply with their Convention obligations
under this provision. The scope of the obligation under Article 13
varies depending on the nature of the applicant's complaint under the
Convention. Nevertheless, the remedy required by Article 13 must
be “effective” in practice as well as in law, in
particular in the sense that its exercise must not be unjustifiably
hindered by acts or omissions by the authorities of the respondent
State (see Aydın v. Turkey, judgment of 25
September 1997, Reports 1997 VI, pp. 1895-96,
§ 103).
- Where
an individual has an arguable claim that he has been ill-treated in
breach of Article 3 of the Convention, the notion of an effective
remedy entails, in addition to a thorough and effective investigation
of the kind also required by Article 3, effective access for the
complainant to the investigation procedure and the payment of
compensation where appropriate (see Aksoy, cited above, pp.
2286-87, §§ 95 and 98; and Assenov and Others, cited
above, § 117).
- The
Court recalls its above findings that the applicant had an arguable
claim that he had been ill-treated by the representatives of the
authorities and that the domestic inquiry into that matter was
inadequate (see paragraphs 119-122). Consequently, any other remedy
available to him, including the claim for damages, had limited
chances of success. While the civil courts have the capacity to make
an independent assessment of fact, in practice the weight attached to
preliminary criminal enquiries is so important that even the most
convincing evidence to the contrary furnished by a plaintiff would
often be dismissed as “irrelevant” (see Menesheva
v. Russia, no. 59261/00, § 76, 9 March 2006).
- The
Court therefore finds that the applicant has been denied an effective
domestic remedy in respect of his complaint of ill-treatment by State
agents. Consequently, there has been a violation of Article 13 in
connection with Article 3 of the Convention.
V. 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
1. Pecuniary damage
- The
applicant claimed 371,000 roubles (RUB) in respect of pecuniary
damage for loss of income during his detention, and the time he spent
recovering from the ill-treatment (a total of fifty-three months). He
claimed that at the time of his arrest he had been employed as a
bricklayer and received a monthly salary of RUB 7,000. The applicant
also explained that although the company had stopped working during
the hostilities, it had not made its employees redundant. According
to a copy of his employment record, on 14 June 2000 the applicant had
left his job on his own initiative. In July 2004 the applicant found
new employment as a driver for a communications company.
- The
Government dismissed the claims as unsubstantiated and excessive.
- The
Court reiterates that it did not find a violation of the substantive
aspect of Article 3 of the Convention, but only of the obligation to
investigate arguable allegations of ill-treatment. In such
circumstances the Court sees no clear causal connection between the
damage claimed by the applicant and the violation of the Convention
found by the Court. It therefore dismisses this part of the claim.
2. Non-pecuniary damage
- The
applicant claimed 100,000 euros (EUR) for the anguish and distress he
had suffered during detention, as well as the feelings of
helplessness and humiliation arising out of the authorities' failure
to investigate his complaints.
- The
Government considered this sum to be excessive.
- The
Court reiterates that it has found a violation of the procedural
aspect of Article 3 and or Article 13 on the account of the
authorities' failure to investigate effectively the applicant's
arguable complaints of ill-treatment. The Court accepts that the
applicant suffered non-pecuniary damage as a consequence of the
violations found, which could not be compensated merely by a finding
of a violation. In such circumstances, and acting on an equitable
basis, it awards the applicant EUR 5,000.
B. Costs and expenses
- The
applicant was represented by Mr. Ferschtman, a lawyer practising in
the Netherlands. The lawyer was found with the assistance of the
Stichting Russian Justice Initiative (“SRJI”), an NGO
based in the Netherlands with a representative office in Russia.
According to the agreement between the applicant and the SRJI, the
SRJI paid the fees to the lawyers, while the applicant would
reimburse the costs to the SRJI should the case be won and the costs
be awarded.
- The
applicant claimed a total of EUR 15,281 under this head, that
is, EUR 14,726 for legal work and EUR 555 for translation
costs.
- The
Government considered that the amount claimed for costs and expenses
had not been sufficiently justified.
- The
Court reiterates that in order for costs and expenses to be
reimbursed under Article 41, it must be established that they were
actually and necessarily incurred and are reasonable as to quantum
(see, for example, Nilsen and Johnsen v. Norway [GC], no.
23118/93, § 62, ECHR 1999-VIII, and Boicenco v.
Moldova, no. 41088/05, § 176, 11 July 2006). In
accordance with Rule 60 § 2 of the Rules of Court, itemised
particulars of all claims must be submitted, failing which the
Chamber may reject the claim in whole or in part.
- The
Court notes that in support of his claims under this head the
applicant submitted time-sheets completed by the lawyer and an
invoice for translation services, amounting to a total of EUR 3,926.
The rest of the claim is not supported by any documents.
- Having
regard to the documents submitted by the applicant, the Court awards
him the amount of EUR 3,926, less EUR 715 received by way of legal
aid from the Council of Europe, together with any value-added tax
that may be chargeable.
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
- Holds that it is unable to consider the merits
of the applicant's complaint concerning the conditions of detention,
as it has been lodged out of time;
- Dismisses the Government's preliminary objection
as to the non-exhaustion of domestic remedies in so far as it relates
to the applicant's detention between 23 January and 18 February
2000;
- Upholds the Government's preliminary objection
as to the non-exhaustion of domestic remedies in so far as it relates
to the applicant's detention between 18 February and 3 May 2000;
- Holds that there has been no violation of
Article 3 of the Convention as regards the ill-treatment of the
applicant during detention between 23 January and 18 February
2000;
- Holds that there has been a violation of
Article 3 of the Convention as regards the obligation to
investigate arguable allegations of ill-treatment;
- Holds that there has been a violation of
Article 13 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts:
(i) EUR
5,000 (five thousand euros) in respect of non-pecuniary damage, to be
converted into Russian roubles at the rate applicable at the date of
settlement;
(ii) EUR
3,211 (three thousand two hundred and eleven euros) in respect of
costs and expenses, to be paid to the SRJI bank account in the
Netherlands;
(iii) any
tax that may be chargeable on the above amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above 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 8 November 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Loukis Loucaides
Registrar President
