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FIRST
SECTION
CASE OF SHERSTOBITOV v. RUSSIA
(Application
no. 16266/03)
JUDGMENT
STRASBOURG
10 June
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 Sherstobitov v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Nina
Vajić,
Anatoly
Kovler,
Khanlar
Hajiyev,
Dean
Spielmann,
Sverre
Erik Jebens,
George
Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 20 May 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 16266/03) 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 Valeriy Aleksandrovich
Sherstobitov (“the applicant”), on 14 April 2003.
- The
applicant was represented by Mr K. Kozhakhmetov, a lawyer practising
in Krasnoyarsk. The Russian Government (“the Government”)
were represented by Ms V. Milinchuk, former Representative of the
Russian Federation at the European Court of Human Rights.
- The
applicant alleged, in particular, that he had been subjected to
ill-treatment in police custody, that his detention had been unlawful
and unreasonably long and that the criminal proceedings against him
had been excessively long.
- On
6 July 2007 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 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1974 and lives in Krasnoyarsk.
1. The applicant’s arrest and questioning at the
police station
- On
29 January 2002 Ts. and V. were drinking beer at a bus stop,
where they saw the applicant and B., a nine-year-old boy. They were
under the impression that the applicant was making sexual advances to
B. and asked the assistant from a shop nearby to call the police. The
shop assistant called the security guards from her company. Two
guards, T. and S., arrived and took the applicant and B. to the
police station at about 1 a.m. on 30 January 2002.
- At
the police station, the applicant was placed in an “administrative”
cell with three other detainees. According to K. and N., police
officers on duty at the police station at the time, N. had to remove
the applicant from the cell because other detainees verbally and
physically attacked him. The applicant did not dispute the account of
his placement in the cell provided by K. and N. However, he denied
having been beaten by the other detainees. According to him, the
police officer removed him from the cell as soon as one of the
detainees started making threats to him. The detainee did not have
time to hit him.
- At
about 4 a.m. on 30 January 2002 the applicant was taken to a separate
room for questioning. According to the applicant, three police
officers handcuffed him, verbally insulted him and hit him on the
head, legs, back and crotch with rubber truncheons. They kicked and
punched him. Then they removed the handcuffs, took off his sweater
and a jacket and continued the beatings, questioning him about the
boy. At about 6 a.m. they brought a rubber truncheon with a condom
put over it. They pulled down the applicant’s pants, inserted
the truncheon up his anus and put a gas mask over his head. He
screamed and they stopped. After that he wrote a confession dictated
by the policemen, who held the rubber truncheon in front of him
throughout that time. At about 1 p.m. the applicant was taken to the
investigator’s office. The applicant told the investigator
about the beatings. The policemen took him out of the office and
punched him again.
- According
to policeman Nik., he took part in the applicant’s questioning
together with policemen Gr. and P. The applicant had bruises and
scratches on his face when they saw him for the first time. It was
obvious that he had been beaten up. His clothes were covered with
dust and shoe prints were visible on them. Nik. realised that other
detainees had beaten the applicant up. The applicant was at first
ashamed to tell them what had happened but then confessed. None of
the policemen put any psychological or physical pressure on him. Gr.
confirmed Nik.’s version of the events. P. later testified that
he had no recollection of the applicant’s questioning.
- On the same day at 10 p.m. the applicant was taken to
the temporary detention centre, where the officer on duty documented
his injuries. Then the applicant was taken to State Hospital no. 7.
The doctor examined him and noted numerous bruises, scratches on the
face, neck, back and arms, and abrasions on the back and chest. The
doctor stated that those injuries were not of a serious nature and
had not caused any “health impairment” or “loss of
working capacity”.
- According
to the applicant, other persons detained at the temporary detention
centre could see bruises and abrasions on his face. He also had
scratches on his chin caused by the gas mask. The handcuffs left
abrasions on his wrists. There were scratches on the neck and bruises
on the chest, buttocks, legs and back. The skin of the anus was
damaged and bleeding.
- According
to the materials in the investigation file, none of the persons
detained at the temporary detention unit recalled that the applicant
had had injuries on his face and body. Nor did they remember that he
had told them about the beatings by the policemen.
2. Criminal proceedings against the applicant
(a) Investigation and first trial
- On 1 February 2002 the investigator ordered the
applicant’s detention pending investigation, noting that he was
charged with a serious criminal offence and might abscond.
- On 8 February 2002 the investigator authorised the
applicant’s continued detention pending investigation. In
particular, she noted as follows:
“Given that [the applicant] might abscond or
reoffend, and having regard to the gravity of the charges..., [he]
should remain in custody.”
- On
10 April 2002 the Kirovskiy District Court of Krasnoyarsk
dismissed the applicant’s request to be released pending
investigation and trial. The applicant appealed. He argued, inter
alia, that he was not a repeat offender, that he had a permanent
place of residence and employment and that he had to provide special
care for his elderly parents.
- On
7 May 2002 the Krasnoyarsk Regional Court upheld the decision of
10 April 2002 on appeal. In particular the court noted:
“[The applicant] is charged with a very serious
criminal offence. His remand in custody and indictment have been
conducted in accordance with law. The [District] Court’s
decision to dismiss the [applicant’s] application for release
was therefore justified.”
- On
30 April 2002 the prosecutor approved the bill of indictment and
on 7 May 2002 the Kirovskiy District Court of Krasnoyarsk
received the case file.
- On
31 May 2002 the court opened the trial. It held four hearings in
total. The first two hearings, on 31 July and 8 August
2002, were adjourned following requests submitted by the applicant
and his counsel to study the case file and to obtain medical
documents and materials concerning the applicant’s allegations
of ill-treatment from the prosecutor’s office.
- On 26 August 2002 the District Court found the
applicant guilty of sexual assault of a minor and sentenced him to
eight years’ imprisonment. On 29 October 2002 the
Krasnoyarsk Regional Court quashed the applicant’s conviction
on appeal, noting that the trial court had failed to establish the
exact time of the crime and to consider an application by the
applicant for certain evidence to be declared inadmissible. The court
further ordered that the applicant should remain in custody.
(b) Second trial
- On
25 November 2002 the case file was returned to the District
Court. On 17 December 2002 the trial was suspended pending
consideration of a request by the prosecutor for supervisory review
of the judgment of 29 October 2002.
- On
31 December 2002 the District Court extended the applicant’s
detention pending trial until 28 March 2003. In particular, the
court noted:
“After having heard [the applicant], his
counsel..., who argued that the applicant should be released pending
trial given that he was employed, could provide positive references
and had two elderly parents who needed his financial support, and the
prosecutor, who argued that it was necessary to extend [the
applicant’s] detention, the court finds that it is necessary to
extend [the applicant’s] detention until 28 March 2003
since, after [the applicant’s] conviction on 26 August
2002 was quashed on appeal, the trial was adjourned pending
consideration of the prosecutor’s application for supervisory
review of the appeal judgment of 29 October 2002. The preventive
measure was imposed on the applicant in accordance with the law and
was justified.”
- On
4 January 2003 the Presidium of the Regional Court dismissed the
prosecutor’s request for supervisory review and returned the
case file to the District Court, which opened the trial on 16 January
2003.
- On
23 January 2003 the Regional Court upheld the decision of
31 December 2002 on appeal. The court noted as follows:
“[The applicant] is charged with a very serious
criminal offence. The indictment and the decisions to remand [the
applicant] in custody and to subsequently extend his detention were
in accordance with the law.”
- On
26 March 2003 the District Court further extended the
applicant’s detention until 28 June 2003. In particular,
the court noted:
“The preventive measure in the form of detention
imposed earlier on the defendant was lawful and justified. At the
present time it is still necessary to detain [the applicant] as the
circumstances justifying his placement in custody have not ceased to
exist.”
- On
3 April 2003 the Regional Court upheld the decision of 26 March
2003 on appeal.
- On
23 April 2003, for an unknown reason, the applicant was not
transported to the courthouse and his counsel did not appear in
court. The District Court adjourned the hearing.
- On
6 May 2003 the District Court commissioned a new comprehensive
forensic medical examination of the victim.
- On
25 June 2003 the District Court ordered the applicant’s
release on an undertaking not to leave town. The court noted that the
proceedings had been stayed pending two expert examinations, that the
investigation had been completed and the victim and all witnesses had
been questioned. It further noted that the applicant had a permanent
place of residence and employment and could not interfere with the
proper administration of justice. On 8 July 2003 the Regional
Court upheld the decision of 25 June 2003 on appeal.
- On
26 August 2003 the District Court granted the prosecutor’s
request for a forensic psychiatric examination of the victim and
stayed the proceedings, which were resumed on 18 December 2003.
- On
16 June 2004 the District Court found the applicant guilty of
sexual assault of a minor and sentenced him to eight years’
imprisonment. The applicant was placed in custody on the same day.
According to the Government, the trial comprised nineteen hearings.
Eight of them were adjourned because of the witnesses’ failure
to appear in court.
- On
14 October 2004 the Regional Court upheld the applicant’s
conviction on appeal.
(c) Supervisory review of the applicant’s
conviction and the third trial
- On
21 March 2006 the Presidium of the Regional Court quashed the
applicant’s conviction by way of supervisory review and
remitted the case to the trial court for fresh consideration. The
applicant was released on an undertaking not to leave town. In
particular, the court indicated as follows:
“The [trial] court failed to comply with the law
requiring objective consideration of the case ... [and] found the
applicant guilty on the basis of assumptions. The time and place of
the crime as established by the court are a supposition (evening of
29 January in a flat at an unidentified address).
The court’s findings are not supported by the
evidence examined at the trial. It failed to take into account
circumstances which could have been decisive for the findings with
regard to the applicant’s guilt.”
- Following
the receipt of the case file, on 26 April 2006 the District
Court scheduled the trial for 10 May 2006. According to the
Government, the District Court held at least twenty-seven hearings.
Thirteen hearings were adjourned because of the witnesses’
failure to appear in court.
- On
14 June 2007 the District Court adjourned the hearing owing to
the illness of the applicant’s counsel. On 2 and 23 July
2007 the hearings were adjourned since the prosecutor and the
applicant’s counsel were on vacation.
- On
10 December 2007 the District Court acquitted the applicant. As
regards the confession written by the applicant on 30 January
2002, the court accepted his explanation that it had been dictated to
him by the police officers and dismissed it as inadmissible evidence.
The court further noted that the applicant’s version of the
events in that regard had been corroborated by other evidence
examined by the court.
- According
to the Government, on 19 December 2007 the Regional Court upheld
the applicant’s acquittal on appeal.
3. Investigation into the applicant’s allegations
of ill-treatment in police custody
- On
31 January 2002 the applicant was questioned by investigator E.
in connection with the criminal case against him. The applicant
refused to answer her questions in the absence of a lawyer and
informed her that the police officers had beaten and tortured him to
make him confess.
- On
1 February 2002 the applicant met the district prosecutor Ger.
The prosecutor allegedly refused to accept the applicant’s
written statement concerning the ill-treatment and advised him to
submit it to the investigator in charge of the criminal case against
him. The investigator agreed to take the statement only on 5 February
2002. On 7 February 2002 the applicant reiterated his
allegations during questioning in the presence of the lawyer. On
15 February 2002 the investigator registered the applicant’s
complaint and forwarded it to the prosecutor’s office.
- On
23 April 2002 the Kirovskiy District Prosecutor’s Office
opened a criminal investigation. On 15 May 2002 the applicant
was granted victim status.
- On
an unspecified date the investigator questioned Ts. and V., two women
who had facilitated the applicant’s arrest. According to them,
Ts. had told the applicant that the police would arrest him and he
had hit her in the face. She had punched him back and scratched his
face. V. could not provide any details with regard to the incident as
she had been severely inebriated at the time of the alleged
altercation between Ts. and the applicant.
- On
4 May 2002 the investigator questioned T., a security guard from
a private company, who had taken the applicant to the police station.
He provided the following account of events:
“I entered the shop and asked the shop assistant
why she had called us. [She] said that the women had asked her to do
it. I went out of the shop. There were two women and a man in
camouflage clothing. He was holding [the applicant]. A nine-year-old
boy was standing next to them. The women told us that [the applicant]
was selling the boy to the passing-by drivers. We took [the
applicant] and the boy into [our] car. We did not use truncheons or
physical force against the applicant since [he] was calm. We took
[the applicant] and the boy to [the police station]. The applicant
was seated on a bench. He was not put in a cell while I was at the
police station, where I spent 20-30 minutes...
I don’t think that [the applicant] had any
abrasions or injuries. [He] was decently dressed and clean.”
- On 17 May 2002 the investigator questioned N., an
officer on duty at the police station on 30 January 2002. N.
submitted as follows:
“Then I brought [the applicant] to an
administrative cell where there were three men being held. While I
was booking another person, the detainees started a fight with [the
applicant]. I immediately opened the cell to take [the applicant]
out, but [the others] had already hit him several times. I took [the
applicant] out of the cell. He had blood over his face. I think his
lip was cut. I took him to [the bathroom] where [he] washed his face.
After that I did not place him in the cell as the other detainees
kept shouting obscenities about him.”
- On
18 May 2002 the investigator questioned Ya., one of the persons
detained with the applicant, who provided the following account of
the events:
“In the night of 29 January 2002 I was taken
to [the police station]. I was placed in an administrative cell...
There were two other men held there. They were in their thirties.
Later another man, who was arrested for the sexual assault of a boy,
was brought to [the police station]. I heard the policemen talk about
it. That man was not placed in the cell. He remained seated on a
bench. I remember that the other detainees and myself asked him for a
cigarette. He did not give us any although he was smoking. I was let
go at about 3 a.m. ... While I was at the police station, that man
was not placed in the cell with other detainees. There were no
conflicts or altercations between him and others...
I did not see any injuries on his face.”
- On
20 May 2002 the investigator questioned K., another person held
at the police station on 30 January 2002. She submitted as
follows:
“When my brother and myself were brought to [the
police station], [the applicant] was already there. When other men
heard why he had been arrested, they started swearing, but I would
not say that they were aggressive. In my presence [the applicant] was
not placed in the cell. He either walked around or sat on one of the
chairs. Then the policemen took him away. At that time he was wearing
clean clothes. He had no injuries on his face.”
- On
27 November 2002 a forensic expert examined the relevant medical
documents concerning the applicant and concluded as follows:
“According to the medical documents concerning the
medical aid provided to [the applicant] on 30 January 2002, [he]
had numerous bruises of the soft tissue, scratches on the face, neck,
back and hands, and abrasions on the back and chest. None of them
caused any health impairment or loss of working capacity. It is
impossible to determine the origin and the time of the said injuries
since the medical documents do not contain any specific details (of
their size, shape, colour and nature).”
- K.’s
brother submitted that he had very poor eyesight and had slept all
the time after he had been placed in a cell with another man.
- On an unspecified date the investigator questioned
other persons who had been detained at the police station on
30 January 2002. B. confirmed that the applicant had been placed
in the cell with other men who had beaten him. She further submitted
that, after the applicant’s placement in the cell, she had
heard loud voices and sounds of a fight. Ro. and Ru. told the
investigator that they had been brought to the police station from a
sobering-up centre and that they had not been put in a cell.
According to the documents submitted by the Government, no attempt
was made to question Z., Kov., Dzh., Kon. and Kh., who had also been
detained at the police station on 30 January 2002.
- On
an unspecified date the investigator commissioned a graphological
forensic examination of the applicant’s handwritten confession.
The expert report stated as follows:
“[The applicant] wrote the confession on
30 January 2002 under the influence of a temporary natural
distraction which could have been external (uncomfortable position)
or internal (unusual state caused by extreme emotional disturbance,
restraint, irritation, etc.) or both. It is impossible to determine
the type of distraction (external or internal) or its source.”
- In
2002 and 2003 the proceedings were discontinued on seven occasions.
Each time the investigator closed the file for lack of corpus
delicti and the supervising prosecutor quashed the relevant
decision, noting that the investigation had been incomplete and based
on insufficient and inconclusive evidence.
On
12 April 2003 the investigator closed the case once more. Her
decision was upheld by the District Court on 5 January 2004. On
17 February 2004 the Regional Court quashed the decision of
5 January 2004 and discontinued the proceedings, noting that the
thrust of the applicant’s complaint was to challenge the
validity of the confession he had made on 30 January 2002 and
that the lower court had not been in a position to consider it.
- On
13 January 2006 the Krasnoyarsk Region First Deputy Prosecutor
quashed the decision of 12 April 2003 and reopened the case.
- On
an unspecified date the investigator commissioned a forensic
examination of the applicant’s clothing, which did not reveal
any traces of blood on the clothes, including the underwear. As
regards the applicant’s damaged jacket, the expert submitted as
follows:
“The damage to the back of the applicant’s
jacket is a tear which resulted from overstretching of the loosest
part of the fabric, probably when some part of the jacket (the sleeve
or the front) was yanked in the course of a fight. It is impossible
to determine the source of the damage (whether it could have been a
rubber truncheon).”
- The
case was closed again on 17 February 2006. Relying on the
medical documents, including the forensic report of 27 November
2002, the medical forensic report that showed that there had been no
blood on the applicant’s clothes, the statements made by Ts.,
V., the police officers on duty on the day of the applicant’s
arrest, the persons detained with the applicant at the police station
and the alleged perpetrators, the investigator noted, in particular,
as follows:
“The preliminary investigation has demonstrated
that all the bodily injuries incurred by [the applicant] were caused
by Ts. and V. and subsequently [the detainees] in the administrative
cell. However, in an attempt to render inadmissible the evidence
obtained against [the applicant], he denies those facts, alleging
that the injuries were inflicted by the police officers...”
- On
15 August 2007 the Deputy Regional Prosecutor quashed the
decision of 17 February 2006 and reopened the case owing to the
incompleteness of the investigation.
- On
17 September, 14 December 2007 and 21 January 2008 the
investigation was stayed pending various forensic expert
examinations. It appears that the investigator commissioned an
additional forensic medical examination of the applicant’s
injuries and an examination of the applicant’s handwritten
confession.
- According
to the medical forensic examination of 18 September 2007, the
applicant had spots on the left part of his body which could have
been caused by the impact of a blunt object or objects under any
circumstances from at least three to six months before the
examination. The expert could not determine the cause and exact time
of the injuries owing to the scarcity of information in the relevant
medical documentation.
- According
to the expert report concerning the applicant’s handwritten
confession, the expert was unable to conclude whether the applicant
had been in a state of fear or under psychological or physical
pressure owing to the insignificant volume of the text submitted for
examination.
- On
26 March 2008 the investigation was resumed and a month later it
was closed again. The investigator noted that the applicant’s
allegations had not been supported by any other evidence gathered. He
relied, inter alia, on the testimonies provided by Ts. and V.,
the police officers on duty at the police station on the day of the
applicant’s arrest, the alleged perpetrators, including Nik.,
who claimed that the applicant had confessed voluntarily to the
crime, and the persons detained at the police station, and forensic
reports. The investigator summed up his conclusion as follows:
“The evidence gathered in the course of the
investigation is not sufficiently reliable to show that the applicant
was subjected to psychological and physical pressure, including
ill-treatment, by the policemen.
It has been established in the course of the
investigation that the bodily injuries incurred by [the applicant]
resulted from an altercation with Ts. and V. and subsequently from
his placement in the administrative cell.
... No proof has been established in the course of the
investigation to support [the applicant’s] allegations.
Accordingly, there are grounds to believe that [the applicant] has
intentionally concealed the circumstances in which he was beaten in
order to mislead the investigation.”
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Pre-trial detention
- Until
1 July 2002 criminal-law matters were governed by the Code of
Criminal Procedure of the Russian Soviet Federative Socialist
Republic (Law of 27 October 1960, “the old CCrP”). From 1
July 2002 the old CCrP was replaced by the Code of Criminal Procedure
of the Russian Federation (Law no. 174-FZ of 18 December 2001, “the
new CCrP”).
- The
Russian Constitution of 12 December 1993 provides that a judicial
decision is required before a defendant can be detained or his or her
detention extended (Article 22). Under the old CCrP, a decision
ordering pre-trial detention could be taken by a prosecutor or a
court (Articles 11, 89 and 96). The new CCrP requires a decision by a
court on a reasoned request by a prosecutor supported by appropriate
evidence (Article 108 §§ 1 and 3 6).
- Before 14 March 2001, pre-trial detention was
authorised if the accused was charged with a criminal offence
carrying a sentence of at least one year’s imprisonment
(Article 96). The amendments of 14 March 2001 repealed the provision
that permitted defendants to be remanded in custody on the sole
ground of the dangerous nature of the criminal offence they had
committed. The new CCrP reproduced the amended provisions (Article 97
§ 1 and Article 108 § 1) and added that a defendant
should not be remanded in custody if a less severe preventive measure
was available.
- Under the new CCrP, “preventive measures”
include an undertaking not to leave a town or region, personal
surety, bail and detention (Article 98). If necessary, the
suspect or accused may be asked to give an undertaking to appear
(Article 112). When deciding on a preventive measure, the competent
authority is required to consider whether there are “sufficient
grounds to believe” that the accused would abscond during the
investigation or trial, reoffend or obstruct the establishment of the
truth (Article 97). It must also take into account the gravity of the
charge, information on the accused’s character, his or her
profession, age, state of health, family status and other
circumstances (Article 99).
- Before 15 June 2001 the old CCrP set no time-limit for
detention pending trial. On 15 June 2001 a new Article 239-1 entered
into force which established that the period of detention during the
trial could not generally exceed six months from the date on which
the court received the file. However, if there was evidence to show
that the defendant’s release might impede the thorough,
complete and objective examination of the case, a court could –
of its own motion or following a request by a prosecutor –
extend the detention by no longer than three months. These provisions
did not apply to defendants charged with particularly serious
criminal offences. The new CCrP provides that the term of detention
during the trial is calculated from the date on which the court
received the file up to the date on which the judgment is given. The
period of detention during the trial may not normally exceed six
months, but if the case concerns serious or particularly serious
criminal offences, the trial court may approve one or more extensions
of no longer than three months each (Article 255 §§ 2
and 3).
B. Investigation of criminal offences
- In
response to a complaint alleging a criminal offence, the investigator
is under an obligation to verify the complainant’s allegations
(Article 144 of the new CCrP).
- Should
there be sufficient grounds to believe that a crime has been
committed, the investigator initiates a criminal investigation
(Article 145 of the new CCrP).
C. Right to rehabilitation
- Every
person who has been acquitted has a right to rehabilitation, which
includes compensation for pecuniary and non-pecuniary damage and
reinstatement of his or her employment, pension, housing and other
rights (Article 133 of the new CCrP).
- A
person who is acquitted after a criminal prosecution may recover,
inter alia, lost earnings, pension and other benefits as well
as legal fees and other litigation expenses he or she incurred
(Article 135 of the new CCrP).
D. Compensation for damage resulting from criminal
prosecution
- The
following provisions of the Russian Civil Code are relevant to the
present case:
Article 1070: Responsibility for damage caused by
unlawful acts of investigative authorities, prosecuting authorities
and courts
“1. Damage caused to a person as a
result of unlawful conviction, unlawful criminal prosecution, ...
unlawful pre-trial detention ... shall be compensated [by the State]
... in full, irrespective of the fault of the [police], prosecutor’s
office or the court.”
Article 1100: Grounds for compensation for
non-pecuniary damage
“Compensation for non-pecuniary damage shall be
afforded irrespective of the fault of the tortfeasor if:
... the damage is caused to a person as a result of his
unlawful conviction, unlawful criminal prosecution, [or] unlawful
pre-trial detention...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that he had been subjected to torture and
inhuman and degrading treatment in contravention of 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 denied the applicant’s allegations of ill-treatment.
They considered that the applicant had sustained the injuries as a
result of the altercations he had had with Ts. and then with the
persons detained with him in the same cell at the police station. In
the Government’s view, most of the injuries had been inflicted
by Ts., that is before the applicant had been taken into police
custody. As regards the incident at the police station, the
Government noted that altercations between inmates were very common
in all member States of the Council of Europe and could not be ruled
out completely despite the effectiveness of the control and security
measures employed. Nevertheless, the authorities had taken the
measures necessary to protect the applicant’s life and health
given that the fight between him and the other detainees had been
promptly stopped by the police officer on duty. They further reasoned
that the injuries the applicant had sustained had not been
sufficiently serious to attain “a minimum level of severity”.
Nor could they have amounted to “inhuman and degrading”
treatment. Lastly, they observed that the Russian authorities had
conducted a thorough investigation into the applicant’s
allegations of ill-treatment.
- The
applicant maintained his complaint. He contended that the medical
documents and the witnesses’ statements constituted sufficient
evidence that supported his allegations of ill-treatment. He noted
that the Government’s argument that most of the injuries had
been inflicted on him during the fight with Ts. was in contradiction
with the medical evidence. In particular, her alleged kicks and
punches could not have left scratches on his body, for the simple
reason that he had had several layers of winter clothes on him. As
regards the alleged fight between him and other persons detained at
the police station, the applicant noted that the Russian authorities
had failed to identify the participants in the fight and those
allegations had been made only by two police officers. None of the
persons detained at the police station had witnessed the fight.
Lastly, the applicant submitted that the authorities had failed to
carry out an effective investigation into his complaint about the
ill-treatment. At the early stages of the proceedings, the
investigator had ignored his complaint. When the criminal case had
been opened, the authorities had done nothing to examine his injuries
and to determine their origin. The forensic medical examination had
taken place approximately ten months after the events in question.
The witnesses had not been questioned promptly either. The
investigation had not been thorough. The case had been closed and
reopened on numerous occasions. When reopening the case, each time
the superior prosecutor had noted that the investigation had been
incomplete and its findings contradictory.
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 claims to have been injured as a result of
ill-treatment in custody, the Government are under an obligation to
provide a complete and sufficient explanation as to how the 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 was raped with a
rubber truncheon 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 raped by the policemen.
- As
regards the injuries the applicant complained of, the Court notes
that the medical evidence submitted by the parties conclusively
demonstrates that the applicant sustained numerous bruises, scratches
on the face, neck, back and arms, and abrasions on the back and
chest.
- The
Court further observes that the parties disagreed as to the cause of
the injuries. The applicant asserted that he had been beaten by the
police officers. The Government, however, suggested that most of the
injuries had been sustained by the applicant as a result of the fight
with Ts. prior to his arrest and that the remaining injuries had been
inflicted by some unidentified persons detained with the applicant at
the police station.
- While
the Court may accept that the scratches on the applicant’s face
might have been caused by Ts., it is not, however, convinced by the
Government’s explanation in respect of the other injuries
sustained by him. The Government have not provided any forensic
evidence to substantiate their speculation that the bruises and
abrasions found on the applicant’s body could have been caused
by Ts. Furthermore, apart from rather general statements made by the
police officer on duty on the relevant day that some persons had
assaulted the applicant (see paragraph 42 above) and B.’s
testimony that she had heard something that could have been a fight
(see paragraph 47 above), there is nothing in the Government’s
submissions that could provide an evidentiary basis for their
conjecture and rebut the presumption of their responsibility for the
injuries inflicted on the applicant while he was in the care of the
State. Accordingly, the responsibility for the applicant’s
injuries 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 is not convinced by the Government’s argument that the
injuries the applicant sustained had not been sufficiently serious to
attain “a minimum level of severity”. Even though, as the
doctor had indicated, those injuries had not caused any “health
impairment” or “loss of working capacity”, this
fact alone cannot rule out a finding that the treatment was severe
enough to be considered inhuman or degrading. The Court considers
that the decision of the officer at the temporary detention centre
who discovered the injuries on the applicant’s body to send him
to hospital and the numerous abrasions and bruises diagnosed by the
doctor who examined the applicant indicate that his injuries were
sufficiently serious to amount to ill-treatment within the scope of
Article 3 (compare Assenov and Others, cited above, § 95).
- Having
regard to the above, the Court concludes that on 30 January 2002
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 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 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 the 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 of ill treatment. It is not convinced, however, that
the inquiry was sufficiently thorough, prompt and expeditious to meet
the requirements of Article 3.
- In
this connection the Court notes that the applicant brought his
allegations of ill-treatment to the attention of the investigator in
charge of his case on 31 January 2002, that is, on the day
following the incident. However, his complaint was officially
registered with a delay of two weeks and the investigation was opened
more than two months after that, on 23 April 2002, which
undoubtedly caused a loss of precious time and serious complications
in the investigation.
- Admittedly,
at the initial stage of the investigation, the authorities took the
necessary steps to verify the applicant’s accusations. They
questioned the witnesses and commissioned forensic examinations.
However, the Court finds it striking that the first forensic medical
examination was conducted only in November 2002, almost ten months
after the applicant had sustained the injuries. Furthermore, the
Court cannot but notice that the scope of the examination was rather
limited. The experts merely reviewed the medical documents in the
applicant’s file. They did not actually examine the applicant
until September 2007, more than five years after he had sustained the
injuries. In such circumstances, the Court is not surprised that the
experts were unable to produce any conclusive findings as to the
cause of the applicant’s injuries.
- Furthermore,
the Court notes that, at the initial stage, the investigation was
considerably prolonged by repeated attempts by the investigator to
close the case in the absence of sufficient grounds. From 2002 to
2003 the case was closed and reopened on seven occasions. Each time,
when reopening the case, the supervising prosecutor noted that the
relevant investigator’s decision had been based on insufficient
and inconclusive evidence.
- Lastly,
having regard to the evidence from the investigation submitted by the
Government, the Court is not convinced that the Russian authorities
made thorough efforts to elucidate the circumstances of the incident.
As regards Ts.’s allegations that she had beaten up the
applicant, the investigator gave no reasons why, in the absence of
any corroborating evidence, he accepted as credible the version of
events provided by a person who had been in an inebriated state at
the relevant time. Nor is it clear why the authorities were unable to
establish the identity of the persons who had been detained with the
applicant at the police station and who had allegedly assaulted him.
Even though the names of those persons were known to the authorities,
only some of them were questioned and denied that they had beaten the
applicant and no explanation was provided as to why it was impossible
to question the rest of them.
- The
Court does not lose sight of the fact that the applicant was
acquitted on all charges and the trial court established that the
confession had actually been dictated to him by police officers.
However, there is no mention of this fact in the evidence from the
investigation submitted by the Government. Contrary to the trial
court’s findings, the investigator reiterated that the
applicant had voluntarily confessed to the crime, as one of the
policemen alleged.
- The foregoing considerations are sufficient to enable
the Court to conclude that the investigation into the applicant’s
complaint of ill-treatment in police custody cannot be considered
“effective”. There has therefore been a violation of
Article 3 of the Convention under its procedural limb.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The applicant complained that the investigation into
his allegations of ill-treatment had been ineffective, contrary to
Article 13 of the Convention, 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 Court observes that this complaint concerns the
same issues as those examined above under the procedural limb of
Article 3 of the Convention (see paragraphs 82-92 above) and should
accordingly be declared admissible. However, having regard to its
conclusion above under Article 3, the Court considers it unnecessary
to examine those issues separately under Article 13.
III. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
- The
applicant complained that his arrest and pre-trial detention had been
unlawful. He further alleged that his pre-trial detention had been
excessively long. He relied on Article 5 of the Convention, which, in
so far as relevant, reads as follows:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
...
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so.
...
3. Everyone arrested or detained in
accordance with the provisions of paragraph 1 (c) of this
Article shall be ... entitled to trial within a reasonable time or to
release pending trial. Release may be conditioned by guarantees to
appear for trial.”
- The
Government contended that, following his acquittal, the applicant had
lost his victim status in respect of his complaints under Article 5
of the Convention. Furthermore, in their view, it remained open to
the applicant to bring a civil claim for compensation for the damage
allegedly resulting from unlawful and unreasonably lengthy pre-trial
detention as provided for in Articles 1070 and 1100 of the
Russian Civil Code. As regards the alleged unlawfulness of the
applicant’s pre-trial detention, the Government conceded that
from 25 November to 31 December 2002 his detention had not
been authorised by a court order. They further submitted that the
applicant had been remanded in custody pending investigation and
trial owing to the gravity of the charges against him. In addition,
it had been made known to the judicial authorities that, if released,
the applicant could have absconded. Lastly, they argued that, as the
applicant had been accused of having molested a boy of less than
fourteen years of age with a learning disability, his pre-trial
detention had also been necessary to ensure his own safety and
security of person.
- The
applicant maintained his complaints. As regards the length of his
pre-trial detention, he noted that, when extending his detention, the
authorities had referred predominantly to the gravity of the charges
against him. At no time had they considered whether the length of his
pre-trial detention had been reasonable or furnished any
justification when extending it.
A. Admissibility
1. The applicant’s victim status
- The
Court reiterates that under Article 34 of the Convention it “may
receive applications from any person ... claiming to be the victim of
a violation by one of the High Contracting Parties of the rights set
forth in the Convention or the Protocols thereto”. It falls
first to the national authorities to redress any alleged violation of
the Convention. In this regard, the question whether an applicant can
claim to be a victim of the violation alleged is relevant at all
stages of the proceedings under the Convention (see Burdov v.
Russia, no. 59498/00, § 30, ECHR 2002-III).
- The
Court also reiterates that a decision or measure favourable to the
applicant is not in principle sufficient to deprive him of his status
as a “victim” unless the national authorities have
acknowledged, either expressly or in substance, and then afforded
redress for, the breach of the Convention (see, for example, Eckle
v. Germany, 15 July 1982, §§ 69 et seq., Series A no.
51; Amuur v. France, 25 June 1996, § 36, Reports
1996-III; Dalban v. Romania [GC], no. 28114/95, §
44, ECHR 1999-VI; and Jensen v. Denmark (dec.), no.
48470/99, ECHR 2001-X).
- Turning
to the circumstances of the present case, the Court observes that on
10 December 2007 the applicant was acquitted on the charges
against him and advised of his right to “rehabilitation”.
His acquittal was upheld on appeal on 7 February 2008. According
to the text of the judgment of 10 December 2007, the trial court
advised the applicant of the possibility of claiming compensation for
pecuniary or non-pecuniary damage and having his “employment,
pension, housing and other rights” reinstated. It remained
silent, however, as to the applicant’s right to liberty.
- In
view of the above, the Court concludes that at no point did the
Russian authorities acknowledge, at least, in substance, that the
applicant’s detention was unlawful or that it had been based on
insufficient reasons or had exceeded a reasonable time. The Court
therefore finds that the applicant can still claim to be the “victim”
of a breach of Article 5 of the Convention and dismisses the
Government’s objection.
2. Domestic remedies
- 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. The existence of the remedies must
be sufficiently certain, in practice as well as in theory, failing
which they will lack the requisite accessibility and effectiveness
(see Aksoy v. Turkey, 18 December 1996, §§ 51-52,
Reports 1996-VI, and Akdivar and Others v. Turkey,
16 September 1996, §§ 65-67, Reports
1996 IV).
- The
Court reiterates that, in accordance with the Convention
institutions’ case-law, where lawfulness of detention is
concerned, an action for damages against the State is not a remedy
which has to be used because the right to have the lawfulness of
detention examined by a court and the right to obtain compensation
for any deprivation of liberty incompatible with Article 5 are two
separate rights (see, among other authorities, Włoch v.
Poland, no. 27785/95, § 90, ECHR 2000 XI).
Furthermore, the Court has already found that Russian law does not
provide for State liability for detention which is not based on
“relevant and sufficient” reasons or which exceeds a
“reasonable time”. This state of Russian law precludes
any legal opportunity for the applicant to receive compensation for
his detention, which was effected in breach of Article 5 § 3
of the Convention (see Korshunov v. Russia, no. 38971/06,
§ 62, 25 October 2007, and Govorushko v. Russia,
no. 42940/06, § 60, 25 October 2007).
- Turning
to the circumstances of the present case, the Court observes that the
applicant brought complaints challenging the lawfulness and length of
his pre-trial detention in the course of the criminal proceedings
against him. They were considered and dismissed by domestic courts at
two levels of jurisdiction. In such circumstances, the Court
considers that the applicant made use of the remedies available to
him at domestic level.
- In
the light of the foregoing, the Court concludes that the Government’s
objection of non-exhaustion must be dismissed.
3. Compliance with the six-month rule
- The
Court reiterates that, according to Article 35 § 1 of the
Convention, it may only deal with the matter within a period of six
months from the date on which the final decision was taken.
- The
Court observes that the applicant’s complaint concerns, inter
alia, the alleged unlawfulness of his arrest on 30 January
2002 and ensuing pre-trial detention, which comprised the following
periods: (1) from the day of his arrest on 30 January 2002 until
26 August 2002, when he was convicted by a court at the first
level of jurisdiction; and (2) from 29 October 2002, when his
conviction was quashed on appeal, until 25 June 2003, when he
was released from custody on an undertaking not to leave town.
- The
Court further observes that the applicant lodged his application on
14 April 2003. It follows that the Court may examine only the
lawfulness of the second period of the applicant’s pre-trial
detention, which commenced on 29 October 2002 and ended on
25 June 2003. The Court therefore considers that the part of the
applicant’s complaint under Article 5 § 1
of the Convention concerning the arrest and detention orders issued
before that date has been lodged out of time and must be rejected in
accordance with Article 35 §§ 1 and 4
of the Convention for non-compliance with the six-month time-limit.
- The
Court notes that the remainder of the complaints under Article 5 §§ 1
and 3 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. It must therefore be declared
admissible.
B. Merits
1. Whether the applicant’s pre-trial detention was
compatible with Article 5 § 1
(a) General principles
110. The Court
reiterates that the expressions “lawful” and “in
accordance with a procedure prescribed by law” in Article 5 §
1 essentially refer back to national law and state the obligation to
conform to the substantive and procedural rules thereof. While, in
the first place, it is for the national authorities, notably the
courts, to interpret and apply domestic law, the position is
different in relation to cases where, as under Article 5 § 1,
failure to comply with that law entails a breach of the Convention.
In such cases the Court can and should exercise a certain power to
review whether national law has been observed (see, among other
authorities, Douiyeb v. the Netherlands [GC], no.
31464/96, §§ 44-45, 4 August 1999).
Furthermore, the “lawfulness” of detention under
domestic law is not always the decisive element. The Court must in
addition be satisfied that detention during the period under
consideration was compatible with the purpose of Article 5 § 1
of the Convention, which is to prevent persons from being deprived of
their liberty in an arbitrary fashion (see, among the most recent
authorities, Bakhmutskiy v. Russia, no. 36932/02, § 109,
25 June 2009).
(b) The applicant’s detention from
29 October to 31 December 2002
- The
Court notes that on 29 October 2002 the Krasnoyarsk Regional
Court quashed the applicant’s conviction on appeal and remitted
the case to the trial court for fresh consideration. The court noted,
inter alia, that the applicant should remain in custody (see
paragraph 19 above).
- In
this connection the Court reiterates that a judicial decision to
maintain a custodial measure would not breach Article 5 § 1
provided that the court “had acted within its jurisdiction ...
[and] had the power to make an appropriate order” (see
Korchuganova v. Russia, no. 75039/01, § 62, 8 June
2006). It is not in dispute that on 29 October 2002 the appeal court
acted within its powers and there is nothing to suggest that its
decision to maintain the applicant’s custodial measure was
invalid or unlawful under domestic law at the relevant time. However,
the Court observes that, when ordering that the applicant should
remain in custody, the Regional Court gave no reasons for its
decision. It also failed to set a time-limit for the continued
detention or for its periodic review. It follows, therefore, that the
applicant remained in a state of uncertainty as to the grounds for
his detention from 29 October to 31 December 2002, when the
trial court re-examined the issue of detention.
- The
question thus arises whether this could be considered to be “an
appropriate order”. The Court has already found a violation of
Article 5 § 1 (c) of the Convention in a number
of cases concerning a similar set of facts. In particular, it has
held that the absence of any grounds given by judicial authorities in
their decisions authorising detention for a prolonged period of time
is incompatible with the principle of protection from arbitrariness
enshrined in Article 5 § 1 (see Khudoyorov v. Russia,
no. 6847/02, § 134, 8 November 2005; Nakhmanovich
v. Russia, no. 55669/00, §§ 70-71, 2 March 2006;
and Stašaitis v. Lithuania, no. 47679/99, § 67, 21
March 2002). Permitting a prisoner to languish in detention without a
judicial decision based on concrete grounds and without setting a
specific time-limit would be tantamount to overriding Article 5, a
provision which makes detention an exceptional departure from the
right to liberty and one that is only permissible in exhaustively
enumerated and strictly defined cases (see Khudoyorov, cited
above, § 142).
- The
Court sees no reason to reach a different conclusion in the present
case. It considers that the order of 29 October 2002 did not
comply with the requirements of clarity, foreseeability and
protection from arbitrariness, which together constitute the
essential elements of the “lawfulness” of detention
within the meaning of Article 5 § 1.
- There
has therefore been a violation of Article 5 § 1 (c) of the
Convention on account of the applicant’s detention from
29 October to 31 December 2002.
- In
view of the above finding, the Court does not consider it necessary
to examine separately the question whether in the circumstances of
this case it was incumbent on the trial court, as the Government
maintained, to re-examine the issue of the applicant’s
detention on 25 November 2002.
(c) The applicant’s detention from
31 December 2002 to 25 June 2003
- The
Court observes that during the period under consideration the
District Court extended the applicant’s detention twice, namely
on 31 December 2002 until 28 March 2003 and on 26 March
until 28 June 2003. Those decisions were upheld by the Regional
Court on appeal on 23 January and 3 April 2002
respectively. The applicant was to remain in custody because of the
gravity of the charges against him.
- The
Court further observes that the trial and appeal courts acted within
their powers in making those decisions and there is nothing to
suggest that they were invalid or unlawful under domestic law. The
question whether the reasons relied upon by the courts were
sufficient and relevant is analysed below in connection with the
issue of compliance with Article 5 § 3 of the
Convention.
- The
Court finds that there has been no violation of Article 5 § 1
of the Convention on account of the applicant’s detention from
31 December 2002 to 25 June 2003.
2. Whether the length of the applicant’s entire
pre-trial detention exceeded the “reasonable time”
requirement set forth in Article 5 § 3
- The Court reiterates that, in determining the length
of detention pending trial under Article 5 § 3 of the
Convention, the period to be taken into consideration begins on the
day the accused is taken into custody and ends on the day when the
charge is determined, even if only by a court of first instance (see,
among other authorities, Wemhoff v. Germany, 27 June
1968, § 9, Series A no. 7, and Labita, cited above,
§§ 145 and 147). In view of the essential link
between Article 5 § 3 of the Convention and paragraph 1 (c) of
that Article, a person convicted at first instance cannot be regarded
as being detained “for the purpose of bringing him before the
competent legal authority on reasonable suspicion of having committed
an offence”, but is in the position provided for by Article 5 §
1 (a), which authorises deprivation of liberty “after
conviction by a competent court” (see Panchenko v. Russia,
no. 45100/98, §§ 91 and 93, 8 February 2005, with further
references). It follows that the applicant’s detention from
26 August 2002, the date of his original first-instance
conviction, to 29 October 2002, the date on which that
conviction was quashed on appeal and his case was remitted for a new
trial, cannot be taken into account for the purposes of Article 5 §
3. Accordingly, the period to be taken into consideration comprised
two terms, the first lasting from 30 January 2002 to 26 August
2002 and the second from 29 October 2002 to 25 June 2003,
and amounted in total to fourteen months and twenty days (see, among
other authorities, Solmaz v. Turkey, no. 27561/02, §§
34-37, 16 January 2007).
- As regards the reasons underlying the applicant’s
detention, the Court observes that the domestic authorities
consistently relied on the gravity of the charges against him as the
sole factor justifying his remand in custody. In this connection the
Court reiterates that, although the severity of the sentence faced is
a relevant element in the assessment of the risk of absconding or
reoffending, the need to continue the deprivation of liberty cannot
be assessed from a purely abstract point of view, taking into
consideration only the gravity of the offence. Nor can continuation
of the detention be used to anticipate a custodial sentence (see
Panchenko, cited above § 102; Ilijkov v.
Bulgaria, no. 33977/96, § 81, 26 July 2001; and Letellier
v. France, 26 June 1991, § 51, Series A no. 207). This is
particularly true in the Russian legal system, where the
characterisation in law of the facts – and thus the sentence
faced by the applicant – is determined by the prosecution
without judicial review of the issue whether the evidence that has
been obtained supports a reasonable suspicion that the applicant has
committed the alleged offence (see Khudoyorov, cited above,
§ 180). In the instant case, beyond two references to the
possibility that the applicant might abscond or reoffend in the two
initial detention orders (see paragraphs 13 and 14 above), the
domestic authorities did not mention any concrete facts corroborating
the detention orders.
- Furthermore,
the domestic courts refused to take into account any specific facts
put forward by the applicant and his counsel in the applications for
release. It follows from the court orders authorising the applicant’s
pre-trial detention that the gravity of the charges carried such a
preponderant weight that no other circumstances could have secured
his release. The Court reiterates that any system of mandatory
detention pending trial is incompatible per se with Article 5
§ 3 of the Convention, it being incumbent on the domestic
authorities to establish and demonstrate the existence of concrete
facts outweighing the rule of respect for individual liberty (see
Rokhlina v. Russia, no. 54071/00, § 67, 7 April
2005, with further references). In the instant case the domestic
authorities did not mention any concrete facts corroborating the
detention orders.
- The Court further observes that during the entire
period under consideration the authorities did not consider the
possibility of ensuring the applicant’s attendance by the use
of other “preventive measures” – such as bail –
which are expressly provided for by Russian law to secure the proper
conduct of criminal proceedings. In that context, the Court would
emphasise that under Article 5 § 3 the authorities are
obliged to consider alternative measures of ensuring an accused’s
appearance at trial when deciding whether he or she should be
released or detained. Indeed, the provision proclaims not only the
right to “trial within a reasonable time or to release pending
trial” but also lays down that “release may be
conditioned by guarantees to appear for trial” (see Khudoyorov,
cited above, § 183, and Dolgova v. Russia, no. 11886/05,
§ 47, 2 March 2006). In the Court’s view, the
authorities should either have considered having recourse to such
alternative measures or should at the very least have explained in
their decisions why such alternatives would not have ensured that the
trial would follow its proper course. This failure is made all the
more inexplicable by the fact that since 1 July 2002 the Code of
Criminal Procedure has expressly required the domestic courts to
consider less restrictive “preventive measures” as an
alternative to custody (see paragraph 61 above).
- Lastly,
the Court finds that the Government’s argument that the
applicant’s detention was necessary “to ensure his safety
and security of person” in view of the nature of the offence he
had been charged with is without merit and unsupported by any
evidence.
- Having
regard to the above, the Court considers that by failing to address
specific facts or consider alternative “preventive measures”
and by relying solely on the gravity of the charges, the authorities
extended the applicant’s detention on grounds which, although
“relevant”, cannot be regarded as “sufficient”
to justify its duration.
- There
has therefore been a violation of Article 5 § 3 of the
Convention.
IV. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the criminal proceedings against him had
been excessively long, in contravention of Article 6 of the
Convention, which reads, in so far as relevant, as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
- The
Government contested that argument. They submitted that, following
his acquittal, the applicant could no longer claim to be the victim
of the alleged violation. They further reasoned that, in any event,
the length of the criminal proceedings against the applicant had been
compatible with the reasonable-time requirement set forth in
Article 6. The domestic courts had held the hearings without
undue delays. In addition, the applicant himself had contributed to
the length of the proceedings. On many occasions, the hearings had
been adjourned because of his counsel’s failure to appear.
- The
applicant maintained his complaint. He submitted that considerable
delays in the proceedings had been attributable to the Russian
authorities. The trial court had been unable to deliver the verdict
in accordance with the law and twice his conviction had been quashed
on appeal. Furthermore, the prosecutor had failed to ensure the
witnesses’ presence in court, which had also caused delays in
the proceedings. Lastly, in his view, the trial court had not
scheduled the hearings regularly and only after his complaints had
been communicated by the Court to the Government had the hearing of
the case proceeded without delays.
A. Admissibility
- With regard to the Government’s objection that
the applicant has lost his victim status, the Court reiterates that
an applicant who complains about the length of criminal proceedings
is not prevented from claiming to be a “victim” by the
fact that the proceedings ended in his acquittal in so far as the
acquittal, not being directly connected to the length of the
proceedings, cannot be regarded as reparation for the alleged damage
(see Wall v. Poland (dec.), no. 58369, 1 October 2002).
- Having
regard to the above, the Court considers that the applicant can still
claim to be the “victim” of a breach of Article 6 of the
Convention in so far as he alleged that the criminal proceedings
against him had been unreasonably long. It therefore dismisses the
Government’s objection.
- 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. The period under consideration
- The
Court notes that the applicant was arrested on 30 January 2002.
The criminal proceedings against him ended on 7 February 2008,
when the Regional Court upheld his acquittal on appeal. The Court
further notes that the period from 14 October 2004, when the
applicant’s second conviction became final and no proceedings
were pending, to 21 March 2006, when his conviction was quashed by
way of supervisory review and the case was remitted to the trial
court for fresh consideration, should not be taken into account (see,
for example, Brovchenko v. Russia,
no. 1603/02, § 97, 18 December 2008).
Accordingly, the criminal proceedings against the applicant lasted
approximately four years and seven months. This period spanned the
investigation stage and the judicial proceedings, where the courts
reviewed the applicant’s case three times at two levels of
jurisdiction, his conviction having been quashed by way of
supervisory review after the second trial and the case having been
remitted for a fresh examination.
2. Reasonableness of the length of the proceedings
- The
Court reiterates that the reasonableness of the length of the
proceedings is to be assessed in the light of the particular
circumstances of the case, regard being had to the criteria laid down
in the Court’s case-law, in particular the complexity of the
case, the applicant’s conduct and the conduct of the competent
authorities (see, among many other authorities, Nakhmanovich,
cited above, § 95).
- The
Court concedes that the case was rather complex. It concerned the
sexual assault of a child with a learning disability and required
comprehensive forensic analysis and examination. However, in the
Court’s view, the complexity of the case alone does not suffice
to account for the length of the proceedings in the instant case.
- The
Court considers that the applicant did not cause any significant
delays in the proceedings. The fact that the proceedings were
adjourned in June and July 2007 owing to his counsel’s sickness
and vacation leave had little effect on the overall length of the
proceedings.
- As regards the conduct of the authorities, the Court
considers that the prosecutor’s office promptly completed the
investigation and prepared the case for trial. The trial court
scheduled and held hearings at regular intervals without undue delay
and cannot be said to have remained inactive. However, most of the
court hearings had to be adjourned because of the witnesses’
failure to appear. During the second trial, which lasted
approximately a year and a half, the court had to adjourn eight out
of nineteen hearings scheduled. During the third trial, which lasted
approximately a year and eight months, thirteen out of twenty-seven
hearings were adjourned for the same reason. The Court discerns no
indication in the case file that the trial court availed itself of
the measures existing under national law to discipline the absent
witnesses and obtain their attendance, in order to ensure that the
case was heard within a reasonable
time (see Zementova v. Russia, no. 942/02, § 70,
27 September 2007; Sidorenko v. Russia, no. 4459/03,
§ 34, 8 March 2007; and Sokolov v. Russia,
no. 3734/02, § 40, 22 September 2005). The Court
therefore finds that the delay occasioned by the witnesses’
failure to attend hearings and the trial court’s failure to
ensure their attendance is attributable to the State.
- The
Court further observes that the superior courts quashed the
applicant’s conviction twice. As a result, the applicant had to
stand trial three times. Although the Court is not in a position to
analyse the legal quality of the domestic courts’ decisions, it
considers that, since the remittal of cases for re-examination is
frequently ordered as a result of errors committed by lower courts,
the repetition of such orders within one set of proceedings may
disclose a serious deficiency in the judicial system (see, mutatis
mutandis, among other authorities, Wierciszewska v. Poland,
no. 41431/98, § 46, 25 November 2003). The fact that the
domestic courts heard the case several times did not absolve them
from having to comply with the reasonable-time requirement of Article
6 § 1 (see, mutatis mutandis, Litoselitis v. Greece,
no. 62771/00, § 32, 5 February 2004).
- Lastly,
the Court notes that the fact that the applicant was held in custody
during the first and second trials required particular diligence on
the part of the authorities dealing with the case to administer
justice expeditiously (see, among other authorities, Korshunov,
cited above, § 71).
- Having
regard to the foregoing, the Court considers that the length of the
criminal proceedings against the applicant did not satisfy the
“reasonable time” requirement. There has accordingly been
a breach of Article 6 § 1 of the Convention.
V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant complained under Article 6 of the Convention that the
criminal proceedings against him and the investigation of his
allegations of ill-treatment in police custody had been unfair.
- However,
having regard to all the material in its possession, and in so far as
these complaints fall within its competence ratione materiae,
the Court finds that there is no 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.
VI. 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 27,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government submitted that nothing should be awarded to the applicant
under this head as it remained open to him to bring a claim for
compensation for damage in connection with his “rehabilitation”
as provided for by domestic law. They further noted that the injuries
that the applicant had sustained resulted from his own acts and
should not give rise to any compensation. In any event, they
considered the applicant’s claims excessive.
- The
Court observes that it has found a combination of grievous violations
in the present case. The applicant was subjected to ill-treatment in
police custody. The investigation into his allegations of
ill-treatment was ineffective. His pre-trial detention from
29 October to 31 December 2002 was unlawful. He remained in
custody pending trial for over fourteen months, his detention not
being based on sufficient grounds. The criminal proceedings against
him have been excessively long. In such circumstances, the Court
considers that the applicant’s suffering and frustration cannot
be compensated for by the mere finding of a violation. Making its
assessment on an equitable basis, the Court awards the applicant the
amount sought, namely EUR 27,000, in respect of non-pecuniary
damage, plus any tax that may be chargeable on that amount.
B. Costs and expenses
- The
applicant also claimed 20,000 Russian roubles (RUB) for the costs and
expenses incurred before the domestic courts, RUB 55,000 for the
costs and expenses incurred for the proceedings before the Court, and
RUB 8,400 for the translator’s services.
- The
Government contended that the applicant had failed to demonstrate
that the costs and expenses he claimed were necessary or reasonably
incurred and proposed that the applicant’s claim be dismissed
in full.
- 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 were
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 1,100, covering
costs under all heads, for the proceedings before the Court.
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 applicant’s complaints
concerning his ill-treatment in police custody, the ineffectiveness
of the ensuing investigation, the unlawfulness and excessive length
of his pre-trial detention and the excessive length of the criminal
proceedings against him 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 that there is no need to examine the
complaint under Article 13 of the Convention;
- Holds that there has been a violation of Article
5 § 1 of the Convention in respect of the applicant’s
pre-trial detention from 29 October to 31 December 2002;
- Holds that there has been a violation of
Article 5 § 3 of the Convention;
- Holds that there has been a violation of
Article 6 § 1 of the Convention on account of the
excessive length of the criminal proceedings against the applicant;
- 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, to be converted into Russian roubles at the rate applicable
at the date of settlement:
(i) EUR
27,000 (twenty-seven thousand euros) in respect of non-pecuniary
damage, plus any tax that may be chargeable;
(ii) EUR 1,100
(one thousand one hundred euros) in respect of costs and expenses,
plus any tax that may be chargeable to the applicant;
(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 10 June 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
