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FIRST
SECTION
CASE OF OLEG NIKITIN v. RUSSIA
(Application
no. 36410/02)
JUDGMENT
STRASBOURG
9 October
2008
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 Oleg Nikitin v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Giorgio
Malinverni,
George Nicolaou, judges,
and André
Wampach, Deputy
Section Registrar,
Having
deliberated in private on 18 September 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 36410/02) 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 Oleg Viktorovich Nikitin
(“the applicant”), on 6 September 2002.
- The
applicant, who had been granted legal aid, was represented by Centre
of Assistance to International Protection, a Moscow-based
human rights organisation. The Russian
Government (“the Government”) were represented by Ms V.
Milinchuk, former Representative of the Russian Federation at the
European Court of Human Rights.
- On
29 May 2007 the Court decided to give notice of the application to
the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. The facts
- The
applicant was born in 1977 and is currently serving a sentence of
imprisonment in penitentiary establishment UN 1612/1 of Mariinsk, the
Kemerovo Region.
1. The applicant’s arrest and alleged
ill-treatment
- On
31 October 2001 at 4 a.m. the applicant was arrested on suspicion of
robbery and taken to the Frunzenskiy District police station,
Ivanovo. He was questioned at 7.20 p.m. the same day.
- According to the applicant, he was also questioned at 2
p.m. on 1 November 2001. During the questioning the police
officers allegedly beat him on his head, chest and legs, seeking to
obtain self-incriminating evidence. Afterwards the applicant was
placed in a preliminary detention cell. The officer on duty was
allegedly instructed not to let the applicant go to the toilet and
not to give him anything to drink, notwithstanding the applicant’s
argument that he suffered from diabetes insipidus which, in case of
dehydration, could provoke an abrupt deterioration in his health.
- According to the applicant, on 2 November 2001 an
ambulance was called by the police officers for a young man detained
in the same cell as the applicant. Following the applicant’s
request, the ambulance doctor examined the applicant and allegedly
told the police officers that he needed to be taken to the hospital.
Notwithstanding the doctor’s advice, the applicant was
transferred to a pre-trial detention facility (СИЗО-1
г. Иваново),
where he was again examined by a doctor.
- The
Government maintained that an ambulance was never called for the
applicant.
- On 2 November 2001 the applicant, in the presence of
his lawyer, wrote a complaint to the Prosecutor’s Office of
ill-treatment by police officers and submitted it to the
investigator. However, neither the applicant nor his lawyer ever
received any answer to the complaint in question.
- According to the Government, however, on 28 December
2001 the applicant’s allegations of ill-treatment were examined
by the Prosecutor of the Frunzenskiy District of Ivanovo, who did not
find a prima facie case of ill-treatment and decided not to institute
criminal proceedings. The Government submitted neither a copy of the
above decision, nor the material of the investigation due to the fact
that they had been destroyed on 27 April 2006 as their retention
period had expired.
2. The applicant’s trial
- On 5 February 2002 the Frunzenskiy District Court of
Ivanovo convicted the applicant of robbery and sentenced him to
eleven years and four months’ imprisonment with forfeiture of
property. Despite the applicant’s objections the trial court
did not obtain the attendance of Mr Sh., a prosecution witness, and
relied on the testimony given by him during the pre-trial
investigation. During the trial the applicant raised the issue of
ill treatment. The trial record reads as follows:
“... In the morning I was taken to the police
officers. I told them everything, but they said I was lying. Around 4
p.m. I was taken to the fourth floor. They bullied and beat me there.
In the presence of my counsel I wrote a complaint and handed it to
Mr Kalyagin, the investigator. However, I never got any answer.
An ambulance medic examined me and said I needed to be taken to
Hospital No. 7. They threatened me all the time, but never explained
what charges were being brought against me. I filed the complaint on
2 November 2001.”
However,
the trial court left this issue unexamined.
- The applicant appealed. In his appeal he complained
that the conclusions of the trial court as regards the circumstances
of the case were wrong, that the court had failed to eliminate
contradictions in the evidence, that it had left certain
circumstances unexamined, that it had failed to establish the
applicant’s participation in the robbery and had relied on some
evidence received in violation of the procedural rules. He further
complained that Mr Sh. had not been informed of his right not to
testify against himself. The applicant’s lawyer further
submitted:
“During the trial [the applicant] submitted that
on 2 November 2001 he wrote a complaint addressed to the Prosecutor
of Ivanovo concerning the wrongful acts of the police officers. This
complaint was written in my presence. Up to the pronouncement of the
conviction [the applicant] had not received any answer to his
complaint.”
- On 21 March 2002 the Ivanovo Regional Court upheld the
judgment on appeal. The appeal court did not investigate the
applicant’s allegations of ill treatment.
- Following
the applicant’s request, on 10 October 2003 the Presidium of
the Ivanovo Regional Court modified the qualification of the
applicant’s crime by way of supervisory review and reduced the
sentence to ten years’ imprisonment.
B. Documents submitted by the parties
1. Documents submitted by the applicant
- The applicant submitted to the Court an extract from
his medical file dated 27 December 2001, which read as follows:
“Suffering from diabetes insipidus of medium
severity [the applicant] has been observed by an endocrinologist
since his childhood. Until 1998 he had a ‘category 3’
childhood disability.
[The applicant] needs constant and regular intake of
antidiuretic hormone three times a day (nasal drops), good nutrition
with sufficient liquid, availability of necessary facilities for
regular and timely compliance with physiological needs (urination) in
order to prevent disease decompensation (organ failure) causing
increased thirst and frequent urination ...”
- The applicant also submitted a statement by one of his
co defendants, Mr T., who had been detained in the Frunzenskiy
District police station together with the applicant from 31 October
to 2 November 2001. The statement was dated 20 January 2003 and
read as follows:
“... On 1 November 2001, at approximately 2 p.m.,
[the applicant] was taken for questioning from the preliminary
detention cell where we were being held. Several hours later he was
brought back to the cell all beaten up, limping on his left leg, with
a haematoma on his eye. [The applicant] told me that he had been
beaten up by the police officers who were seeking to obtain his
confession.
... In my presence [the applicant’s] request for a
doctor was refused. ...”
2. Documents submitted by the Government
- The Government produced a medical reference issued by
the Ivanovo ambulance unit on 2 August 2007 pursuant to the request
of the Prosecutor’s Office of the Ivanovo Region. The reference
indicated that in the period from 30 October through 4 November
2001 an ambulance team was called to the Frunzenskiy District police
station located at [the address]. Between the words “was
called” an uncertified hand-made correction “not”
was made. The applicant’s personal information was indicated in
the “name” and “age” of the patient’s
field.
- The Government produced a copy of the document
approved by the Prosecutor of the Frunzenskiy District of Ivanovo
dated 27 April 2006 on destruction of documents with expired
retention period. The reference to the applicant’s case file (1
volume) is contained at number 141.
- They further produced an information note from the
Prosecutor’s Office of the Ivanovo Region, from which it
follows that the applicant’s complaint about the alleged
beatings was received by the Prosecutor’s Office on 23 November
2001, and that on 28 December 2001 it was dismissed in accordance
with Article 5 § 2 of the Code of Criminal Procedure.
- Despite the Court’s request the Government did
not submit the medical documents showing the state of the applicant’s
health after the alleged ill-treatment. The Government explained that
the requested information could have been retrieved from the
outpatient record of the pre trial detention facility of
Ivanovo. However, on 16 July 2007 the record in question was
destroyed due to the expiration of its three-year retention period.
II. RELEVANT DOMESTIC LAW
- The
RSFSR Code of Criminal Procedure (in force until 1 July 2002, “the
CCP”) established that a criminal investigation could be
initiated by an investigator on a complaint by an individual or on
the investigative authorities’ own initiative when there were
reasons to believe that a crime had been committed (Articles 108 and
125). A prosecutor was responsible for general supervision of the
investigation (Articles 210 and 211). He could order a specific
investigative action, transfer the case from one investigator to
another or order an additional investigation. If there were no
grounds to initiate a criminal investigation, the prosecutor or
investigator issued a reasoned decision to that effect which had to
be notified to the interested party. The decision was amenable to an
appeal to a higher prosecutor or to a court of general jurisdiction
(Article 113).
- On
29 April 1998 the Constitutional Court of the Russian Federation held
that anyone whose legitimate rights and interests had been affected
by a decision not to institute criminal proceedings should have the
right to appeal against that decision to a court.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE
CONVENTION ON ACCOUNT OF ILL-TREATMENT OF THE APPLICANT
A. Admissibility
1. Arguments of the parties
(a) The Government
- The Government averred that the applicant had failed
to exhaust domestic remedies which were effective, accessible and
capable of providing redress in respect of his allegations. They
argued that, being represented by an experienced lawyer, the
applicant could have exercised due diligence in the matter and, not
having received an answer to his complaint, inquired about its
whereabouts. The Government further noted that the trial court had
not been in a position to examine the applicant’s allegations
of ill-treatment, and therefore the applicant’s having raised
this issue before the trial court could not be regarded as an
appropriate venue of exhaustion.
- Finally, the Government maintained that the six-month
time-limit set by Article 35 § 1 of the Convention should be
counted from the date of the dismissal of the applicant’s
complaint on 28 December 2001 and that his application, lodged more
than eight months after that date, should be rejected as
inadmissible.
(b) The applicant
- The
applicant argued that it was not until he had received the
Government’s observations of 15 August 2007 on the above
application that he learnt about the decision of 28 December 2001
refusing to institute criminal proceedings against the police
officers. For this reason he could not appeal against the above
decision and had, therefore, chosen to raise the issue of
ill-treatment before the trial court and subsequently at the
examination of his case on appeal. Besides, he had never been given
an opportunity to study the contents of the decision of 28 December
2001.
2. The Court’s assessment
- 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).
- The
Court emphasises that the application of the rule of exhaustion of
domestic remedies must make due allowance for the fact that it is
being applied in the context of machinery for the protection of human
rights that the Contracting States have agreed to set up.
Accordingly, it has recognised that Article 35 § 1 must be
applied with some degree of flexibility and without excessive
formalism. It has further recognised that the rule of exhaustion is
neither absolute nor capable of being applied automatically; for the
purposes of reviewing whether it has been observed, it is essential
to have regard to the circumstances of the individual case. This
means, in particular, that the Court must take realistic account not
only of the existence of formal remedies in the legal system of the
Contracting State concerned but also of the general context in which
they operate, as well as the personal circumstances of the applicant.
It must then examine whether, in all the circumstances of the case,
the applicant did everything that could reasonably be expected of him
or her to exhaust domestic remedies (see Akdivar and Others,
cited above, p. 1211, § 69, and Aksoy, cited above,
p. 2276, §§ 53-54).
- Regard
being had to the above, the Court considers that the questions of
exhaustion of domestic remedies and compliance with the six-month
rule are closely linked to the substance of the applicant’s
complaints and should be joined to the merits. Noting the arguments
submitted by the parties on this question, the Court considers it
appropriate to address these questions in its examination of the
applicant’s allegations concerning the procedural limb of
Article 3.
- The
Court notes, therefore, that the applicant’s complaints are not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. It further notes that they are not inadmissible on
any other grounds. They must therefore be declared admissible.
B. Merits
- The
applicant complained that on 1-2 November 2001 he had been
ill-treated by police officers and that the authorities had not
carried out an effective investigation into his allegations of
ill-treatment. He relied on 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.”
1. Arguments of the parties
- The
Government submitted that it was no longer possible to determine
whether in fact the applicant had been subjected to inhuman or
degrading treatment. Neither the authorities nor the applicant were
capable of providing any evidence of physical harm inflicted on the
latter as a result of the alleged police brutality. The only
indication of the alleged ill-treatment is contained in the
submissions of the applicant’s co-defendant, Mr T., who saw the
applicant return from the interrogation limping on one leg and with a
haematoma on his eye. The statement in question was made more than
fourteen months after the alleged beatings (see paragraph 16 above).
- The
Government further maintained that the applicant did not bring his
complaint to the Prosecutor’s Office until 23 November 2001
(see paragraph 19 above), that is three weeks after the alleged
beatings, with the effect that on 28 December 2001 when the
Prosecutor of the Frunzenskiy District of Ivanovo examined the
complaint it found no grounds for institution of criminal proceedings
against the police officers.
- The
applicant maintained his complaint. He submitted that besides the
statement of his co-defendant the allegations of ill-treatment were
supported by his detailed account of events set forth in his
complaint to the Prosecutor’s Office, which was dated 2
November 2001 and, on the same day, in the presence of the
applicant’s lawyer, handed to the investigator. Besides, the
applicant’s allegations were reflected in the trial record and
in the grounds for his appeal against conviction. The applicant
explained that the statement of Mr T. had been obtained as late as
January 2003, because prior to then he had had no chance to ask his
co-defendant for a description of the events in question. The
applicant further argued that the Government’s position was not
supported by any evidence that would date back to the relevant time.
In addition, certain potential evidence, such as the outpatient
records of the detention facility where the applicant had been
detained, had been destroyed shortly after the communication of the
applicant’s complaint to the Government (see paragraph 20
above).
- The
applicant further alleged that the domestic authorities had neglected
their positive obligation to perform an effective investigation under
Article 3 of the Convention that would meet the requirements of due
scrutiny, speediness and impartiality.
2. The Court’s assessment
(a) Alleged failure to carry out an
effective investigation
(i) General principles
- The
Court reiterates that where an individual makes a credible assertion
that he has suffered treatment infringing Article 3 at the hands of
the police or other similar agents of the State, 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. As with an investigation under Article 2, such an
investigation should be capable of leading to the identification and
punishment of those responsible. Otherwise, the general legal
prohibition of torture and inhuman and degrading treatment and
punishment would, despite its fundamental importance, be ineffective
in practice and it would be possible in some cases for agents of the
State to abuse the rights of those within their control with virtual
impunity (see Jasar v. the former Yugoslav Republic of Macedonia,
no. 69908/01, § 55, 15 February 2007; Matko v. Slovenia,
no. 43393/98, § 84, 2 November 2006; Assenov and Others
v. Bulgaria, judgment of 28 October
1998, Reports 1998 VIII,
p. 3288, § 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 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 Isayeva and Others v. Russia, nos. 57947/00,
57948/00 and 57949/00, §§ 208-13, 24 February 2005,
and Menesheva v. Russia, no. 59261/00, § 67, ECHR
2006-...).
(ii) Application of the above principles
in the present case
- The
Court considers, first of all, that the applicant’s testimony
and complaints as regards the events of 31 October-2 November 2001
raised a reasonable suspicion that he had been ill-treated by the
police. The Court further observes that the matter was duly brought
before the competent authorities at the time when they could
reasonably be expected to investigate the circumstances in question.
The domestic authorities were therefore under an obligation to
conduct an effective investigation satisfying the above requirements
of Article 3 of the Convention.
- It
appears that on 28 December 2001, that is almost two months after the
alleged instance of ill-treatment, the Prosecutor of the Frunzenskiy
District of Ivanovo examined the applicant’s allegations and
decided to refuse to institute criminal proceedings. Neither the
applicant nor his representative were informed about the ongoing
investigation, granted access to its materials or even provided with
a copy of the decision of 28 December 2001. The contents of the
above decision were not made available to the Court either (see
paragraphs 10 and 18 above).
- The
Court further observes that in the course of the proceedings against
the applicant, which started shortly after the alleged ill-treatment,
the prosecution authorities were made aware of the fact that both the
applicant and his representative remained ignorant of the outcome of
the investigation into the applicant’s allegations concerning
police brutality (see paragraphs 11-13 above). However, they remained
inactive. The issue is consequently not so much whether there was an
investigation as whether it was conducted diligently, whether the
authorities were determined to identify and prosecute those
responsible, and, accordingly, whether the investigation was
effective (see Krastanov v. Bulgaria, no. 50222/99, § 59,
30 September 2004).
- In
the light of the foregoing the Court is unable to establish the scope
and the nature of the investigation of the applicant’s
allegations. In particular, the Court is unable to establish whether
the domestic authorities took the necessary measures to gather
medical evidence about the applicant’s injuries, what
assessment, if any, was made of that evidence, whether the domestic
authorities took the necessary steps to identify the alleged
perpetrators and to question them, and whether any external
authorities were involved in the investigation. It therefore
considers that the investigation carried out in the instant case did
not comply with the requirements of Article 3 of the Convention.
- The
Court considers that, never having been notified of the decision of
28 December 2001 to refuse to institute criminal proceedings against
the police officers, the applicant could not have pursued a judicial
appeal against it and could not have been expected to lodge his
complaint to the Court within six months of the above date. By
applying to the Court on 6 September 2002, within six months of
the termination of the criminal proceedings against him, the
applicant complied, in the circumstances of the present case, with
the six-month rule.
- The
Court therefore dismisses the Government’s objections as
regards exhaustion of domestic remedies and compliance with the six
month time-limit (paragraphs 23-24 above) and holds that there has
been a violation of Article 3 in that the authorities failed to
conduct a thorough and effective investigation of the applicant’s
arguable claim that he had sustained injuries at the hands of the
police.
- Having regard to the grounds on which it has found a
violation of the procedural aspect of Article 3, the Court considers
that no separate issue arises under Article 13 of the Convention (see
Jasar, cited above, § 62; Kazakova
v. Bulgaria, no. 55061/00, § 70,
22 June 2006; and Bekos and Koutropoulos v. Greece, no.
15250/02, § 57, ECHR 2005-... (extracts)).
(b) Alleged ill-treatment in police
custody
(i) General principles
- The
Court reiterates that “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, failing which a clear
issue arises under Article 3 of the Convention” (see Tomasi
v. France, judgment of 27 August 1992, Series A no. 241-A, pp.
40-41, §§ 108-11, 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, such proof may follow from the
coexistence of sufficiently strong, clear and concordant inferences
or of similar unrebutted presumptions of fact. Where the events in
issue lie wholly, or in large part, within the exclusive knowledge of
the authorities, as in the case of persons within their control in
custody, strong presumptions of fact will arise in respect of
injuries occurring during such detention. Indeed, the burden of proof
may be regarded as resting on the authorities to provide a
satisfactory and convincing explanation (see Ribitsch v. Austria,
judgment of 4 December 1995, Series A no. 336, § 34, and Salman
v. Turkey [GC], no. 21986/93, pp. 25-26, § 100, ECHR
2000-VII).
- In
respect of a person deprived of his liberty, any recourse to physical
force which has not been made strictly necessary by his own conduct
diminishes human dignity and is in principle an infringement of the
right set forth in Article 3 of the Convention (see Selmouni,
cited above, § 99). The requirements of an investigation
and the undeniable difficulties inherent in the fight against crime
cannot justify placing limits on the protection to be afforded in
respect of the physical integrity of individuals (see Tomasi,
cited above, § 115, and Ribitsch, cited above, §§
38-40).
(ii) Application of the above principles
in the present case
- In
the present case the applicant alleged that on 1-2 November 2001 he
had been ill-treated by the police while he was in custody at the
police station. The Court observes at the outset that the applicant
had consistently maintained in full his assertions of ill-treatment
(see paragraphs 9, 11 and 12). The Court further observes that
the applicant’s account of events was corroborated by the
written depositions of the applicant’s co-defendant, Mr T.,
who had been detained in the Frunzenskiy District police station
together with the applicant from 31 October to 2 November 2001. The
latter confirmed that the applicant was subjected to beatings by
police officers and was denied medical assistance following his
requests (see paragraph 16 above). The Government did not challenge
the above statement.
- The
Court further observes that apart from an extract from the
applicant’s medical file (see paragraph 15 above), the
applicant could not supply any other relevant medical documents
since, as confirmed by the Government (see paragraph 20 above), it so
happened that the records of the applicant’s medical
examination contained in the detention facility’s outpatient
log were destroyed on 16 July 2007 due to the expiration of their
three-year retention period. In this connection, the Court observes
that the evidence in question was kept for almost twice as long as
the declared three year retention period and was destroyed
shortly after the communication of the present case to the
Government.
- The
Court considers that the above circumstances, as well as the Court’s
finding as regards the ineffectiveness of the investigation carried
out by the domestic authorities in the present case, created an
unrebutted presumption of fact that the applicant was subjected to
ill-treatment at the hands of the police and required the Government
to provide for a satisfactory and convincing explanation as to why
the use of physical force had been necessary.
- On
the basis of all the material placed before it, the Court finds that
neither the authorities at the domestic level, nor the Government in
the present proceedings have discharged the burden of proof or
advanced any convincing explanation in this respect. The Court
concludes therefore that the Government have not satisfactorily
established that the recourse to physical force was strictly
necessary due to the applicant’s conduct.
- As
to the seriousness of the acts of ill-treatment, the Court considers
that the acts complained of were such as to arouse in the applicant
feelings of fear, anguish and inferiority capable of humiliating and
debasing him and possibly breaking his physical and moral resistance.
The existence of physical pain or suffering is attested by the
applicant’s statements regarding his ill-treatment in custody
and statements of his co-defendant from which it follows that the
pain and suffering were inflicted on the applicant intentionally.
- Having
regard to all the circumstances of the case, such as the duration of
the treatment, its physical or mental effects, the sex, age and state
of health of the victim (see Batı and Others v. Turkey,
nos. 33097/96 and 57834/00, § 120, ECHR 2004-IV (extracts)), the
Court concludes that, taken as a whole and having regard to its
purpose and severity (see, for example, §§ 6 and 7 above),
the ill-treatment at issue amounted to inhuman and degrading
treatment.
- Accordingly,
there has been a breach of Article 3 of the Convention on account of
this ill-treatment.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant further complained under Article 6 §§ 1 and 3 (d)
of the Convention that he had not been given an opportunity to
examine a witness against him.
- The
Court observes that the applicant had failed to raise the above issue
in his grounds for appeal and had therefore failed to comply with the
rule on exhaustion of domestic remedies. It follows that this
complaint must be rejected pursuant to Article 35 §§ 1 and
4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 20,000 euros (EUR) in respect of non pecuniary
damage.
- The
Government contested the applicant’s claims as contradictory to
the Court’s case-law. In any event, they considered that the
finding of a violation would constitute sufficient just satisfaction.
- The
Court observes that it has found the authorities of the respondent
State to be responsible for the breach of Article 3 as regards the
applicant’s ill-treatment in the police custody and on account
of their failure to investigate the applicant’s allegations of
police brutality. The Court believes that the applicant
must have suffered frustration and anguish as a result of the lack of
concern on the part of the domestic authorities with respect to his
complaint. Making an assessment on an equitable basis, it awards the
applicant the sum of EUR 8,000, plus any tax that may be chargeable.
B. Costs and expenses
- The applicant did not claim any costs and expenses
and, accordingly, there is no call to award him anything under this
head.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Joins to the merits the Government’s
objection as to the exhaustion of domestic remedies and the six-month
rule, and rejects them;
- Declares the complaints concerning the alleged
ill-treatment and the failure of the domestic authorities to carry
out an effective investigation admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
3 of the Convention on account of the lack of an effective
investigation into the applicant’s complaints that he had
sustained injuries at the hands of the police;
- Holds that there has been a violation of Article
3 of the Convention as regards the ill-treatment in police custody;
- Holds that that there is no need to examine the
complaint under 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, EUR 8,000 (eight
thousand euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage, to be converted into
Russian roubles at the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 9 October 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Christos Rozakis
Deputy Registrar President
