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FIRST
SECTION
CASE OF BELOBORODOV v. RUSSIA
(Application
no. 11342/05)
JUDGMENT
STRASBOURG
21 October
2010
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 Beloborodov 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,
Dean
Spielmann,
Sverre Erik Jebens, judges,
and André
Wampach, Deputy
Section Registrar,
Having
deliberated in private on 30 September 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 11342/05) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Mr Dmitriy Anatolyevich
Beloborodov (“the applicant”), on 13 March 2005.
- The
applicant was represented by Mr S. Kiryukhin, a lawyer practising in
Orsk. The Russian Government (“the Government”) were
represented by Mr G. Matyushkin, Representative of the Russian
Federation at the European Court of Human Rights.
- The
applicant alleged, in particular, that on 22 April 2004 he had been
subjected to ill-treatment while in police custody and that the
authorities had failed to conduct a proper investigation into the
incident.
- On
29 January 2009 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1975 and lived, prior to his arrest, in
Novotroitsk, Orenburg Region.
A. The applicant’s arrest and questioning
- On
22 April 2004, at 9.05 p.m., the applicant was arrested on suspicion
of involvement in drug dealing and taken to a police station for
questioning. According to the applicant, the police officers
handcuffed him and beat him. Then they hung him up by the handcuffs
with his legs not touching the floor. In the morning he was left in a
tiny cell where he could not even lie down and had to stand.
- On
23 April 2004, at 8.55 p.m., the applicant was taken to a temporary
detention centre. During the questioning which took place on the same
date, he complained that he had been beaten by police officers at the
police station.
- On
24 April 2004, at 12.15 p.m., the applicant was examined by a
forensic medical expert. The applicant reported that he had been
beaten by the police officers on 22 April 2004. They had punched him
and hit him with a chair on the head and other parts of his body. He
further complained that he was experiencing pain in the lumbar area,
in the neck, the buttocks and the right calf. The expert noted
abrasions on the applicant’s upper lip and wrists, a bruise on
the upper left eyelid, and multiple bruises on the left temple. The
applicant was also suffering from nausea and dizziness. According to
the doctor, the injuries could have resulted from the impact of blunt
objects and could have occurred up to one day before the medical
examination. They did not cause any impairment to the applicant’s
general health.
- On
25 April 2004 a medical emergency team was summoned to see the
applicant, who was suffering from diabetes and neurasthenia.
B. The investigation into the applicant’s
allegations
- On
26 April 2004 the applicant’s counsel complained to the
prosecutor’s office about the applicant’s ill-treatment
in police custody.
- On
29 April 2004 the senior investigator of the Leninskiy District
Prosecutor’s Office of Orsk dismissed the complaint. The
investigator noted that the applicant had sustained the injuries on
the afternoon of 23 April 2004, whereas he alleged that he had been
subjected to ill-treatment on 22 April 2004.
- The
investigator based his findings on the forensic medical report of
24 April 2004, and the testimony provided by three police
officers, who denied the applicant’s allegations and claimed
that he had actively resisted arrest and even managed to break his
handcuffs.
- On
18 May 2004 the Deputy Prosecutor of the Leninskiy District of Orsk
quashed the investigator’s decision of 29 April 2004. The
prosecutor stated that the investigator’s findings were
inconclusive and that the inquiry had been incomplete.
- On
28 May 2004 the investigator dismissed the applicant’s
complaint. The investigator noted that the applicant had actively
resisted arrest and questioning and that the police officers had had
to use physical force to restrain him. The investigator further noted
that, according to the statement submitted by the temporary detention
centre where the applicant had been taken on 23 April 2004, he did
not have any injuries upon arrival. As to the injuries documented on
24 April 2004, the investigator decided that the applicant must
have sustained them no earlier than 12 noon on 23 April 2004,
that is, after his arrest and search, which he had actively resisted.
- On 7 June 2004 the Leninskiy District Court of Orsk
quashed the decision of 28 May 2004. The court noted that the
investigator’s findings were inconclusive and contradictory. In
particular, the court observed as follows:
“According to the materials in the case file
concerning the refusal to open a criminal investigation, [the
applicant] was not questioned with regard to the injuries he had
sustained. The decision not to open a criminal investigation was
based on the statements made by M., T., and K., the police officers
[accused by the applicant of ill-treatment], a report provided by
[the temporary detention centre], and the forensic medical report [of
24 April 2004]. [The investigator’s] findings [of 28 May 2994]
are manifestly contradictory and inconclusive. On the one hand, the
investigator noted that [the applicant’s] injuries had resulted
from his active resistance to the police officers in the course of
his arrest on 22 April 2004. On the other hand, the investigator
referred to the forensic medical report, arguing that [the applicant]
had sustained the injuries no earlier than 12 noon on 23 April 2004.
[Thus, the investigator] failed to elucidate the circumstances under
which [the applicant] had sustained the injuries, whether it had
happened on 22 April 2004 or no earlier than 12 noon on 23
April 2004, and how those injuries had originated if no one had
beaten [the applicant]. [The investigator] only established that the
applicant did sustain the injuries, but failed to determine the
circumstances of their origin.
Furthermore, M. had stated that [the applicant] had
broken his metal handcuffs... However, [the investigator] did not
examine the handcuffs. Nor did he verify [M.’s statement].
On the day of the court hearing concerning [the
applicant’s] remand in custody, [he] submitted that the police
officers had torn his shirt. His statement was recorded in the
minutes of the hearing... [The applicant] explained that the police
officers had torn his shirt when they beat him. [The applicant’s
allegations] were not verified.
According to the information provided by [the remand
prison], [the applicant] is receiving medical treatment; certain
tests have been carried out, but his condition is not improving. [The
investigator] did not verify whether there was a link between [the
applicant’s] condition and the injuries he had sustained.
The court subscribes to the opinion of the applicant’s
representative that the inquiry conducted was incomplete in view of
[the investigator’s] failure to determine the degree of
severity of the [applicant’s] injuries.
Having regard to the above, the court considers that an
additional and comprehensive inquiry is required in order to
reconcile all the discrepancies.”
- On
13 July 2004 the Orenburg Regional Court found that the District
Court had failed to examine properly all the material in its
possession and had based its decision mainly on the applicant’s
testimony. The Regional Court quashed the decision of 7 June
2004 and remitted the matter for fresh consideration.
- On
13 August 2004 the Leninskiy District Court of Orsk upheld the
investigator’s decision of 28 May 2004. The court found the
police officers’ actions to have been lawful and dismissed the
applicant’s request for them to be subjected to a polygraph
test. In particular, the court observed as follows:
“According to the forensic medical report, [the
applicant] had injuries only on his face. No injuries were noted in
the lumbar area or on the neck or buttocks. According to the
information submitted by the [temporary detention centre], [the
applicant] complained about heart pains and diabetes; he was examined
and no injuries were noted. The court established that [the
applicant] had refused to provide any explanation to the investigator
in respect of [his allegations of ill-treatment]. As the police
officers who had arrested the applicants submitted, [he] had not been
beaten...
The material submitted contains information about the
place and time of the applicant’s arrest. The court discerns no
contradiction between this information and the circumstances of the
[applicant’s] arrest.
[The investigator] indicated in his decision that a
criminal investigation should not be opened ... that [the applicant]
had resisted arrest and had been handcuffed for that reason. At [the
police station] he had resisted again and broken his handcuffs. The
investigator did not discern any evidence showing that the police
officers’ actions vis-à-vis [the applicant] had
been unlawful.”
- On
16 September 2004 the Orenburg Regional Court upheld the decision of
13 July 2004 on appeal.
II. RELEVANT DOMESTIC LAW
Investigation of criminal offences
- In
response to a complaint of a criminal offence, the investigator is
under obligation to verify the complainant’s allegations
(Article 144 of the Code of the Criminal Procedure (the “CCrP”)).
- Should
there be sufficient grounds to believe that a crime had been
committed, the investigator initiates a criminal investigation
(Article 145 of the CCrP).
- The
complainant may appeal against the investigator’s refusal to
open a criminal investigation to the investigator’s superior, a
prosecutor or a court (Article 148 of the CCrP).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant alleged that he had been subjected to ill-treatment on
22 April 2004, in contravention of Article 3 of the Convention.
He further complained under Article 13 of the Convention that
the investigation conducted by the authorities in response to his
complaint of ill-treatment had been incomplete and contradictory. The
Court will examine the complaints under Article 3 of the
Convention, which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
Government contested the applicant’s argument. They stated that
his allegations of ill-treatment had been thoroughly examined. It had
been established, however, that the police officers had not subjected
the applicant to torture or inhuman or degrading treatment.
Accordingly, there had been no violation of the applicant’s
rights set out in Article 3 of the Convention, either under the
substantive or the procedural limb.
- The
applicant maintained his complaints.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Alleged ill-treatment
- The
Court has stated on many occasions that Article 3 enshrines one of
the most fundamental values of democratic societies. Even in the most
difficult circumstances, such as the fight against terrorism and
organised crime, the Convention prohibits in absolute terms torture
and inhuman and degrading treatment or punishment, irrespective of
the victim’s conduct (see, among many other authorities, Labita
v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV, and
Selmouni v. France [GC], no. 25803/94, § 95, ECHR
1999-V).
- The Court further reiterates that allegations of
ill-treatment must be supported by appropriate evidence. To assess
this evidence, the Court adopts the standard of proof “beyond
reasonable doubt” but adds that such proof may follow from the
coexistence of sufficiently strong, clear and concordant inferences
or of similar unrebutted presumptions of fact (see Labita,
cited above, § 121).
- Where
an individual is taken into custody in good health but is found to be
injured at the time of release, the burden of proof may be regarded
as resting on the authorities to provide a plausible and convincing
explanation of how those injuries were caused (see Ribitsch
v. Austria, 4 December 1995, § 34, Series A no. 336).
- Turning
to the circumstances of the present case, the Court firstly observes
that the applicant’s allegations that he had been hung up by
his handcuffs are not supported by the medical documentation
submitted by the parties. Nor did the subsequent inquiry conducted by
the authorities elucidate the disputed facts. In such circumstances,
the Court finds it impossible to establish “beyond reasonable
doubt” whether or not the applicant was hung up by his
handcuffs as he alleged.
- As
regards the injuries the applicant complained of, the Court notes
that the medical evidence submitted by the applicant conclusively
demonstrates that he sustained numerous injuries, including abrasions
on his upper lip and wrists, a bruise on the upper left eyelid, and
multiple bruises on the left temple.
- The
Court further observes that the parties did not dispute, although
they were not in agreement as to the exact date, that the applicant
had sustained the injuries in question while he was in police
custody, that is between 22 and 23 April 2004. Accordingly, the
Court’s task in the present case is to ascertain whether the
Government have met their obligation to provide a plausible
explanation of how those injuries were caused.
- The
Court notes that in response to the applicant’s consistent
account of the circumstances of his questioning on 22 April 2004 at
the police station, the Government made no attempt to account for the
cause of the applicant’s injuries. They did no more than refer
to the findings of the domestic authorities’ inquiry, which
provided no explanation as to the cause of the applicant’s
injuries. The inquiry relied on the statements made by the alleged
perpetrators, who denied the allegations of ill-treatment, and on the
forensic medical report which stated, without further details, that
the applicant’s injuries must have been inflicted no earlier
than 12 noon on the day following the applicant’s questioning.
- While
the Court agrees that the applicant’s account of the events of
22 April 2004 was not supported by the conclusions of the
forensic medical expert or the statements made by the alleged
perpetrators, it cannot subscribe to the Government’s view that
this fact alone, in the absence of any plausible explanation as to
the cause of the injuries sustained by the applicant while in police
custody, was sufficient to dismiss his allegations of ill-treatment
as unsubstantiated.
- In
such circumstances, the Court considers that the Government failed to
rebut the presumption of their responsibility for the injuries
inflicted on the applicant while in the care of the State.
Accordingly, the responsibility for them lay with the domestic
authorities.
- The Court further reiterates that ill-treatment must
attain a minimum level of severity if it is to fall within the scope
of Article 3. The assessment of this minimum is relative: it depends
on all the circumstances of the case, such as the duration of the
treatment, its physical and/or mental effects and, in some cases, the
sex, age and state of health of the victim. In respect of a person
deprived of his liberty, recourse to physical force which has not
been made strictly necessary by his own conduct diminishes human
dignity and is in principle an infringement of the right set forth in
Article 3 (see Assenov and Others v. Bulgaria, 28 October
1998, § 94, Reports of Judgments and Decisions
1998-VIII).
- The
Court considers that the numerous abrasions and bruises noted by the
forensic medical expert who examined the applicant indicate that his
injuries were sufficiently serious to amount to inhuman treatment
prohibited by Article 3 of the Convention (compare Assenov and
Others, cited above, § 95).
- Having
regard to the above, the Court concludes that on 22 April 2004 the
applicant was subjected to ill-treatment for which responsibility lay
with the domestic authorities and which amounted to inhuman treatment
contrary to Article 3 of the Convention. It follows that there
has been a violation of Article 3 of the Convention under its
substantive limb.
2. Adequacy of the ensuing investigation
- The Court reiterates that where an individual raises
an arguable claim that he has been seriously ill-treated by the
police or other such agents of the State unlawfully and in breach of
Article 3, that provision, read in conjunction with the State’s
general duty under Article 1 of the Convention to “secure to
everyone within 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, cited above,
§ 102).
- An
obligation to investigate “is not an obligation of result, but
of means”: not every investigation should necessarily be
successful or come to a conclusion which coincides with the
claimant’s account of events; however, it should in principle
be capable of leading to the establishment of the facts of the case
and, if the allegations prove to be true, to the identification and
punishment of those responsible (see Paul and Audrey Edwards v.
the United Kingdom, no. 46477/99, § 71, ECHR 2002-II,
and Mahmut Kaya v. Turkey, no. 22535/93, § 124, ECHR
2000-III).
- An
investigation into serious allegations of ill-treatment must be
thorough. That means that the authorities must always make a serious
attempt to find out what happened and should not rely on hasty or
ill-founded conclusions to close their investigation or as the basis
for their decisions (see Assenov and Others, cited above, §§
103 et seq.). They must take all reasonable steps available to them
to secure evidence concerning the incident, including, inter alia,
eyewitness testimony and forensic evidence (see, mutatis
mutandis, Salman v. Turkey [GC], no. 21986/93, § 106,
ECHR 2000-VII; Tanrıkulu v. Turkey [GC], no. 23763/94, §§
104 et seq., ECHR 1999-IV; and Gül v. Turkey, no.
22676/93, § 89, 14 December 2000). Any deficiency in the
investigation which undermines its ability to establish the cause of
injuries or the identity of the persons responsible will risk falling
foul of this standard.
- Furthermore,
the investigation must be expeditious. In cases examined under
Articles 2 and 3 of the Convention, where the effectiveness of
the official investigation is at issue, the Court has often assessed
whether the authorities reacted promptly to the complaints at the
relevant time (see Labita, cited above, §§ 133
et seq.). Consideration has been given to delays in the starting of
investigations, delays in taking statements (see Timurtaş
v. Turkey, no. 23531/94, § 89, ECHR 2000-VI, and Tekin
v. Turkey, 9 June 1998, § 67, Reports 1998-IV), and
the length of time taken to complete an initial investigation (see
Indelicato v. Italy, no. 31143/96, § 37, 18 October
2001).
- Turning
to the facts of the present case, the Court observes that the
authorities did carry out an inquiry into the applicant’s
allegations. The investigator at the prosecutor’s office
conducted it promptly and informed the applicant of the result
without undue delay. The Court is not convinced, however, that the
inquiry was sufficiently thorough to meet the requirements of Article
3.
- As
regards the thoroughness of the investigation, the Court observes
that a number of significant omissions capable of undermining its
reliability and effectiveness were, in fact, identified by a domestic
court at the first level of jurisdiction. The Court accepts the
District Court’s findings of 7 June 2004 (see paragraph 15
above) that, when arriving at his decision to refuse to institute
criminal proceedings against the police officers, the investigator
confined himself to questioning the police officers involved. Even
assuming that the applicant had indeed refused to talk to the
investigator, the Court finds the latter’s effort for
establishment of the facts insufficient. In particular, at no point
did he organise a confrontation between the applicant and the police
officers to verify the truthfulness of the testimony provided by the
alleged perpetrators.
- Furthermore,
the investigator, as the District Court indicated, failed to
determine the cause of the applicant’s injuries and to account
for the inconsistencies in his own reconstruction of the events of 22
and 23 April 2004. In particular, the investigator’s findings
that the applicant had actively resisted arrest and questioning and
that he had even broken his handcuffs lack any basis in evidence
except for the statements made by the alleged perpetrators. As the
District Court noted, no attempt was made by the investigator to
examine the available physical evidence, such as the broken handcuffs
or the torn shirt the applicant was wearing on 22 April 2004.
- The
subsequent judicial proceedings do not seem to have rectified the
omissions of the investigator’s inquiry. The decision taken by
the District Court on 7 June 2004 was quashed on appeal and the
court, considering the applicant’s complaint anew, did not
discern any flaws in the inquiry and validated the investigator’s
findings.
- The foregoing considerations are sufficient to enable
the Court to conclude that the authorities failed to carry out an
effective investigation into the applicant’s allegations of
ill-treatment. Accordingly, there has been a violation of Article 3
of the Convention in this regard.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant alleged a violation of Article 1 of the
Convention. He complained under Article 14 of the Convention that the
local authorities had refused to use a polygraph test to verify the
testimony of the police officers who had detained and questioned him,
whereas such tests were regularly applied in Moscow, and under
Article 34 of the Convention that for six months he had been
unable to communicate with the Court because his representative had
been placed in custody.
- However,
having regard to all the material in its possession, the Court finds
that the events complained of do not disclose any appearance of a
violation of the rights and freedoms set out in the Convention or its
Protocols. It follows that this part of the application must be
rejected as being manifestly ill-founded pursuant to Article 35 §§
3 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 90,000 euros (EUR) in respect of pecuniary and
non-pecuniary damage.
- The
Government considered the applicant’s claim excessive. They
further submitted that the applicant had failed to justify it or to
produce the relevant calculations.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, the Court observes that it has found that the
applicant was subjected to ill-treatment in police custody and that
the investigation into his allegations of ill-treatment was
ineffective. In such circumstances, the Court considers that the
applicant’s suffering and frustration cannot be compensated by
the mere finding of a violation. However,
the Court accepts the Government’s argument that the particular
amount claimed appears excessive. Making its assessment on an
equitable basis, it awards the applicant EUR 21,000, in
respect of non-pecuniary damage, plus any tax that may be chargeable
on that amount.
B. Costs and expenses
- The
applicant also claimed, without specifying the amount, reimbursement
for the services provided by his representative before the Court.
- The
Government submitted that the applicant had failed to demonstrate
that he had actually incurred the costs or expenses in question.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
accepts the Government’s argument that the applicant did not
demonstrate that he had indeed incurred any costs and expenses and
rejects the applicant’s claim.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints under Article 3 of the
Convention concerning the ill-treatment of the applicant on 22 April
2004 and the effectiveness of the ensuing investigation admissible
and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
3 of the Convention under its substantive limb;
- Holds that there has been a violation of Article
3 of the Convention under its procedural limb;
- Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 21,000
(twenty-one thousand euros) in respect of non-pecuniary damage, plus
any tax that may be chargeable, to be converted into Russian roubles
at the rate applicable on 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 amounts 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 21 October 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Christos Rozakis
Deputy Registrar President
