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FIRST
SECTION
CASE OF CHERKASOV v. RUSSIA
(Application
no. 7039/04)
JUDGMENT
STRASBOURG
18
October 2011
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 Cherkasov v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Peer Lorenzen,
Mirjana
Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre
Sicilianos,
Erik Møse, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 27 September 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 7039/04) 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 Anatoliy Vladimirovich
Cherkasov (“the applicant”), on 4 January 2004.
- 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 that he had been beaten up by police officers on 23
August 2004 and that the authorities had subsequently failed to
investigate the episode. The applicant was also dissatisfied with the
outcome of various unrelated court proceedings against private
individuals and State authorities.
- On
4 September 2008 the President of the First Section decided to
communicate the complaint concerning the applicant’s alleged
ill-treatment and the lack of proper investigation of the matter. It
was also decided to examine the merits of the application at the same
time as its admissibility (former Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1956 and lives in the village of Ramon in the
Voronezh Region.
A. The events of 23 August 2004 and related proceedings
1. The applicant’s arrest on 23 August 2004 and
his initial detention in a sobering-up cell
- At
around 6 p.m. on 23 August 2004 the applicant was on his way to a
grocery store. According to him, he did not feel well and sat down on
the steps of a local canteen.
- Police
officers from the Ramonskiy District Department of the Interior for
the Voronezh Region (“the District Department of the Interior”)
who were patrolling the streets, having apparently taken the
applicant for a drunkard, approached him and invited him to follow
them to the District Department of the Interior’s building.
- The
applicant having refused, they forced him into their car and then
brought him to a cell in the District Department of the Interior’s
building which was used as a sobering-up centre. Upon admission, the
applicant was diagnosed by a nurse as suffering from alcohol
intoxication. It appears that the applicant spent a few hours in the
cell, loudly demanding his release and even trying to force the door
open with a wooden bench. He also sought access to his lawyer and a
doctor.
- Some
time later a paramedic crew arrived but refused to examine the
applicant, having allegedly been offended by his rude words and
behaviour.
- The
applicant’s stay in the sobering-up cell was documented in the
District Department of the Interior’s records as having lasted
from 8.20 to 11.40 p.m. on 23 August 2004.
2. The applicant’s fight with police officers and
subsequent detention in a temporary detention ward
- At
around 10 p.m. the applicant was taken outside from his cell.
- According
to the applicant, when he came out of the District Department of the
Interior’s building into its internal yard, a police officer
walking behind him struck three blows on his ribs. The applicant
turned around and responded by hitting the officer’s face with
his fists. In the ensuing fight, the officer in question was joined
by his colleagues and eventually prevailed. Together they forced the
applicant on to the ground and kicked him for some time. It appears
that as a result the applicant passed out.
- The
applicant was then placed in a temporary detention ward at the local
police station. The Government submitted a charge sheet confirming
his administrative detention at around 11.50 p.m. The applicant’s
subsequent calls for a doctor throughout the night remained
unanswered. In the morning a paramedic crew arrived. Apparently, they
examined the applicant but did not detect any traces of injuries and
soon left. The applicant submitted that the paramedic crew had again
refused to examine him and that the so-called examination had not
been proper, as the nurse present had simply looked at him from a
distance.
3. The hearing before a judge of the District Court and
the applicant’s release
- On the morning of 24 August 2004 at around 10.30 a.m.
the applicant was brought before Judge P. of the Ramonskiy District
Court, Voronezh Region (“the District Court”) in
connection with his allegedly rude behaviour and the use of offensive
language in the sobering-up cell at the District Department of the
Interior’s building. The judge decided that the applicant had
been liable for the administrative offence of minor breach of the
peace and gave him an oral warning.
- After
the hearing at the District Court the applicant was released.
- The
applicant apparently failed to bring any appeal proceedings in
respect of this decision and ten days later after its notification on
29 August 2004 it came into force.
- This
decision was subsequently quashed on 10 March 2005 by the president
of the Voronezh Regional Court as inconsistent, unjustified and
poorly motivated and the related administrative proceedings were
discontinued as time-barred. The president of the Regional Court
noted that some important documents had been missing from the case
file concerning the matter.
4. The applicant’s medical examinations and
treatment in the Regional Hospital
- Immediately after his release at around 11.00 a.m. on
24 August 2004 the applicant went in person to the Ramon District
Prosecutor’s office for the Voronezh Region (“the
District Prosecutor’s office”), which referred him to a
local hospital for medical examination. The applicant was given a
handwritten referral letter by an acting district prosecutor, N.,
which directed the applicant to undergo a medical examination in a
local hospital.
- On the same date at 11.30 a.m. he was examined by a
surgeon from a local hospital, and on 25 August 2004 by a dentist and
an otolaryngologist. According to the applicant, his blood was also
tested for alcohol with a negative result.
- The applicant’s medical condition on 24 August
2004 during his visit to the surgeon was described in a medical
report of the examination as follows:
“During the examination by a surgeon, the
existence of numerous injuries on the top of the head, subarachnoid
haematomas measuring up to three cm in diameter, three bruises on the
face, scratches on the nose ..., a dark brown bruise measuring three
to five centimetres on the side of the neck. On the back of the neck,
a brown bruise of two to three centimetres; on the front of the right
shoulder, a dark brown bruise measuring four to seven centimetres. On
the surface of the ribcage, multiple scratches with bruises,
concentrated mostly on the left side of the central collarbone line.
On both forearms more than ten bruises and scratches. Scratches of up
to two to four centimetres in the area of the elbow on both sides. On
the back side of the rib cage and the back of the knee five scratches
of up to three to four centimetres. Bruises in the lower area of
thighs and shanks ...”
- An
additional entry in the applicant’s medical file dated 25
August 2004 stated that the applicant had suffered “a closed
fracture of the nose without splintering”.
- Since
the applicant did not feel well, on 26 August 2004 he went to a
forensic-examination bureau in the town of Voronezh for an
examination. The applicant was examined there and also referred to a
specialised department of the Regional Hospital.
- A medical report dated 26 August 2004 essentially
confirmed the applicant’s condition as already described in the
report of 24 August 2004, having identified the same injuries in more
detail.
- On
27 August 2004 the applicant appeared at the Regional Hospital, which
was unable to conduct the necessary tests on that date and invited
the applicant to return on Monday, 30 August 2004. On that date the
applicant was identified as being in need of urgent treatment. He was
hospitalised in the neurosurgical department of the Regional Hospital
with concussion and remained there until 13 September 2004.
5. The criminal inquiry into the events of 23 and 24
August 2004
- On 15 September 2004, two days after his discharge
from hospital, the applicant went in person to the District
Prosecutor’s office and registered a complaint of ill-treatment
during his detention on 23 and 24 August 2004.
(a) First round of investigation
- Following a preliminary inquiry, on 24 September 2004
investigator S. identified officers E. and O. as suspects and then
took a decision to discontinue the proceedings in relation to the
applicant’s complaints for the lack of evidence of any crime
having been committed.
- In the course of the proceedings investigator S.
collected statements of various police officers, including those who
had brought the applicant to the sobering-up cell, those who had
guarded that cell, those who had escorted the applicant to the
temporary detention ward, as well as the medical staff who had been
called to examine the applicant’s condition on that night. All
of them, except for officers T. and S., denied any knowledge of the
fight mentioned by the applicant.
- As regards the latter two, in a statement dated 3
September 2004 officer T. also mentioned the use of physical force –
as well as special techniques – “to calm the applicant
down”. In a statement dated 3 September 2004 officer S.
mentioned the use of physical force in respect of the applicant
during that night because the applicant had allegedly “used
offensive language, had acted aggressively and had wanted to hit him
and his colleagues on the face”.
- The
investigator did not make any additional inquiries into the episode
mentioned by officers T. and S., nor ordered medical examination of
the persons allegedly involved.
- Having mentioned the parts of statements of various
witnesses in which all of them had confirmed the applicant’s
detention in a sobering-up cell, but had denied that the fight
described by the applicant had taken place, the investigator then
stated as follows:
“Taking into account that there exists sufficient
evidence showing the lack of any crime ... it is decided to
discontinue the proceedings accordingly.”
- On
29 November 2004 the Deputy Prosecutor of the District Prosecutor’s
office quashed the decision of 24 September 2004 and remitted the
case to the investigator for additional examination. The prosecutor
noted that the decision of 24 September 2004 had been incomplete and
superficial, in that no evidence had been taken from two witnesses
who would have been present during the applicant’s admission to
the sobering-up cell, as well as his former fellow inmates.
(b) Second round of investigation
- On
1 December 2004, after additional inquiry, investigator S. again took
a decision to discontinue the investigation for the lack of evidence
of a crime. It appears that the decision now took into account the
evidence given by additional witnesses, such as the applicant’s
former fellow inmates.
- Having mentioned the parts of statements of various
witnesses in which all of them had confirmed the applicant’s
detention in a sobering-up cell, but had denied that the fight
described by the applicant had taken place, as well as the statements
of the applicant’s former fellow inmates who had not confirmed
the presence of injuries on the applicant’s body, the
investigator made the following conclusion:
“... Thus, according to witness statements at the
time of the [applicant’s] detention in the [police station] the
applicant had no injuries. And his allegation that the injuries were
inflicted during the detention is not confirmed by any evidence. The
statements of the medical staff ... are confirmed by the entries in
the record of the emergency service ... Entry no. 3620 dated 23
August 2004 reflects the examination of [the applicant] and a
diagnosis: alcohol intoxication ... no need in medical treatment.
Entry no. 3623 dated 24 August 2004 reflects the examination of [the
applicant] and a diagnosis: chronic bronchitis originating in asthma.
There is no information about the presence of injuries on [the
applicant’s] body.
In view of the above, there is a sufficient data
indicating the lack of crime ... and the proceedings should be
discontinued.”
- By
a decision of 5 February 2005, the District Prosecutor quashed the
decision of 1 December 2004 as incomplete and superficial and
remitted the case to the investigator for additional inquiry. The
prosecutor noted that the alleged fight and the issue of the origin
of the applicant’s injuries remained without proper
clarification.
(c) Third round of investigation
- On 15 February 2005 the Deputy District Prosecutor
took a decision to discontinue the investigation for the lack of
evidence of a crime. The decision was essentially based on the same
pieces of evidence as the previous decisions.
- The officers who escorted the applicant from the
sobering-up cell to the temporary detention ward had been identified,
but the decision did not address the applicant’s allegation
concerning his fight with the policemen and the previous statements
of the policemen mentioning the use of force. The prosecutor reasoned
as follows:
“... the allegations that the injuries were
inflicted by the policemen of the [local] police station, as
described by [the applicant], remained unconfirmed in the course of
the investigation. Thus, according to witness statements and other
materials, during the [applicant’s] detention at the ... police
station there were no injuries on his body .... The statements of the
questioned witnesses are credible and coordinate well among
themselves, which is why there is no reason to doubt them.
Overall, the investigation was unable to obtain any data
which would confirm that the injuries in question were inflicted on
[the applicant] by policemen ... E. and O., who had escorted [the
applicant] from the sobering-up cell to the temporary detention ward.
In view of the above, there are no signs of any crime in the actions
of E. and O. ... and the proceedings should be discontinued.”
6. The judicial review of the decision of 15 February
2005
- The applicant appealed against the decision of 15
February 2005 before the courts under Article 125 of the Code of
Criminal Procedure, contesting the established version of events and
pointing to its various inconsistencies and shortcomings in the
investigative process.
- On
6 June 2005 the District Court, acting as a first-instance court,
upheld the decision of 15 February 2005. The court decided that the
investigation had been lawful and sufficiently complete to exclude
the criminal responsibility of the police officers in question. The
court noted, in particular:
“... During the investigation carried out on the
[applicant’s] request ... it was established that on 23 August
2004 [the applicant] was arrested and detained in the [local] police
station, where he was placed in sobering-up cell, and then an
administrative case against him was sent for examination on the
merits to the justice of the peace of circuit no. 2 of the Ramon
District of the Voronezh Region.
In taking a decision to discontinue the proceedings, the
deputy prosecutor concluded that no sufficient data confirming that
any injuries had been inflicted on [the applicant] by officers E. and
O. who escorted him from the sobering-up cell was obtained.
The [applicant’s] arguments that this decision was
unlawful remained unconfirmed...”
- The judgment was upheld on appeal by the Voronezh
Regional Court on 16 August 2005. The court noted that:
“... The reference to the erroneous assessment of
the evidence in the case by the [prosecutor] is insufficient to quash
the judgment... [T]he investigator checked and assessed the existing
evidence in the case in accordance with the requirements of [the
domestic law], having considered as trustworthy the statements made
by the [policemen] and the [medical staff] and having rightly
rejected the [applicant’s] version of the events, concluded
that no crime had been committed by officers E. and O. ...”
7. Further court proceedings
- On
6 November 2008, following notification of the present case to the
respondent Government, the Voronezh Regional Prosecutor’s
office applied for supervisory review of the judgment of 6 June
2005 and the decision of 16 August 2005.
- One 8 December 2008 a judge of the Voronezh Regional
Court examined and rejected the appeal as unsubstantiated. It was
noted that:
“... The arguments that in taking the relevant
decision no account was made of the presence of injuries on [the
applicant’s body] are insufficient to quash the decisions of
the lower courts, since the previous check failed to substantiate the
version that the injuries in question had been inflicted as a result
of violent, unlawful and intentional actions of the policemen. There
are no reasons to consider that the check was incomplete. In the
course of the examination of the case by the first instance court
[the applicant] had failed to discredit the existing witnesses,
including those who were not policemen. No such arguments were made
in the present appeal either...”
B. The applicant’s litigation with various bodies
and individuals
- In
addition to the court proceedings in relation to the events of
23 August 2004, the applicant also took part in a series of
unrelated proceedings against various State bodies and individuals.
- He
brought a set of civil proceedings which ended with a final judgment
of the Voronezh Regional Court of 22 November 2001 and was also
unsuccessful in two sets of court proceedings, in which he had sued
different individuals and bodies for damages, which ended with final
decisions dated 14 September 2004 and 21 October 2004.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Detention in sobering-up centres by the police
- Under
paragraph 11 of Section 11 of the Police Act (no. 1026-1 of 18 April
1991, as in force at the relevant time) police officers have, amongst
other powers, the right to escort individuals who are intoxicated in
a public place and who have lost the ability to move independently to
medical institutions or the premises of local departments of the
interior and to detain them until they become sober.
B. Minor disorderly acts
- The relevant section of the Code of Administrative
Offences dated 30 December 2001 (as in force at the material time)
reads as follows:
Article 20.1 Minor disorderly acts
“Minor disorderly acts, that is a breach of public
order expressing an apparent lack of respect for society, accompanied
by the utterance of obscenities in public places, offensive behaviour
towards others as well as the destruction or deterioration of the
property of others, shall be punishable by an administrative fine of
between five hundred to one thousand roubles or by administrative
arrest of up to fifteen days.”
C. The use of force by the police
1. General provisions
- Article
21 § 2 of the Constitution provides that no one may be subjected
to torture, violence or any other cruel or degrading treatment or
punishment.
- Article 117 § 2 (f) of the Criminal Code of the
Russian Federation makes acts of torture punishable by up to seven
years’ imprisonment. Under Article 286 § 3 (a) and (c)
abuse of an official position associated with the use of violence or
entailing serious consequences carries a punishment of up to ten
years’ imprisonment.
- Article
286 § 3 (a) of the Criminal Code provides that actions of a
public official which clearly exceed his authority and which entail a
substantial violation of the rights and lawful interests of citizens,
committed with violence or the threat of violence, shall be
punishable by three to ten years’ imprisonment with a
prohibition on occupying certain posts or engaging in certain
activities for a period of three years.
2. The Police Act
- The
Police Act (no. 1026-1 of 18 April 1991, as in force at the relevant
time) provides that police officers are only entitled to use physical
force, special equipment and firearms in the cases and within the
procedure established by the Police Act. Staff members of police
facilities designated for temporary detention of suspects and accused
persons may only use such force and special equipment in cases and
within the procedure established by the Custody Act. A police officer
must warn of his intention to use physical force, special equipment
or a weapon and must give the person concerned sufficient time to
comply with his order, except in cases where a delay in using
physical force, special equipment or a weapon may create an immediate
danger for the life and health of citizens and police officers, is
likely to cause other serious consequences or where a warning is
impossible or impracticable in the circumstances. Police officers
must endeavour to minimise damage caused by the use of physical
force, special equipment or a weapon, to the extent possible
depending on the nature and seriousness of the offence, the
dangerousness of the person who has committed it and the degree of
resistance offered. Police officers must also ensure that individuals
who have been injured as a result of the use of physical force,
special equipment or a weapon receive medical assistance (section
12).
- Police
officers may use physical force, including martial arts, to stop a
criminal or administrative offence being committed, arrest persons
who have committed a criminal or administrative offence or overcome
resistance to a lawful order, if non-violent methods are insufficient
to ensure discharge of the police duties (section 13).
- Sections
14 and 15 of the Police Act lay down an exhaustive list of cases when
special equipment, including rubber truncheons, handcuffs and
firearms, may be used. In particular, rubber truncheons may be used
to repel an attack on civilians or police officers, to overcome
resistance offered to a police officer, to repress mass disorder or
to put an end to collective actions disrupting the operation of
transport, means of communication or legal entities. Handcuffs may be
used only to overcome resistance to a police officer, to arrest an
individual caught while committing a criminal offence against life,
health or property and if the offender is attempting to escape, and
to bring arrestees to police stations, as well as to transport them
and protect them if their behaviour allows the conclusion that they
are liable to escape, cause damage to themselves or other individuals
or offer resistance to police officers.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that he had been subjected to ill-treatment by
police officers during his overnight detention from 23 to 24 August
2004 and that the domestic authorities had failed to investigate the
matter properly. The Court will examine this complaint 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.”
A. Admissibility
- The
Government maintained that the applicant’s case before the
Court was premature, in that the competent prosecutor’s office
had brought supervisory review proceedings challenging the decision
of 15 February 2005 and the subsequent court decisions and that the
supervisory review proceedings were still pending. They later
informed the Court that the supervisory review proceedings were
unsuccessful and that the lower courts’ judgments remained in
force.
- The
applicant did not make any comments in respect of this objection and
generally considered that the case was admissible.
- The Court finds this part of the application is not
manifestly illfounded within the meaning of Article 35 § 3
(a) of the Convention. It further notes that it is not inadmissible
on any other grounds. It must therefore be declared admissible.
B. Merits
- The
Government submitted that the applicant’s allegations of
illtreatment had been thoroughly examined by the competent
domestic authorities and had been reasonably rejected as unfounded.
According to them, the investigation had been of sufficient quality.
At the same time, they admitted that the investigation had not
resolved the question of the alleged fight between the policemen and
the applicant.
- The
applicant disagreed with the Government and insisted on his initial
version of events.
1. Alleged ill-treatment in police custody
(a) General principles
- The
Court has held on many occasions that the authorities have an
obligation to protect the physical integrity of persons in detention.
Where an individual is taken into custody in good health but is found
to be injured at the time of release, it is incumbent on the State to
provide a plausible explanation of how those injuries were caused
(see Ribitsch v. Austria, 4 December 1995, § 34,
Series A no. 336; see also, mutatis mutandis, Salman v.
Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII). Otherwise,
torture or ill-treatment may be presumed in favour of the claimant
and an issue may arise under Article 3 of the Convention (see Tomasi
v. France, 27 August 1992, §§ 108-11, Series A no.
241 A, and Selmouni v. France [GC], no. 25803/94, §
87, ECHR 1999-V). The Court further recalls that, while it is
sensitive to the subsidiary nature of its role and cautious about
taking on the role of a firstinstance tribunal of fact, it is
nevertheless not bound by the findings of domestic courts and may
depart from them where this is rendered unavoidable by the
circumstances of a particular case (see, for example, Matyar v.
Turkey, no. 23423/94, § 108, 21 February 2002 and, by
contrast, Edwards v. the United Kingdom, 16 December 1992, §
34, Series A no. 247 B, and Vidal v. Belgium, 22
April 1992, §§ 33 and 34, Series A no. 235 B).
(b) Assessment of the evidence
- The Court notes that the parties did not dispute the
validity of the medical report drawn up on 24 August 2004 immediately
following the applicant’s release, which confirmed the presence
of multiple injuries to his head, neck, face, ribcage, arms and legs
(see paragraph 20). The Government were accordingly under an
obligation to provide a plausible explanation of how the applicant’s
injuries had been caused.
- At
the outset, the Court observes that the applicant’s allegations
of illtreatment were examined and rejected by the domestic
authorities in the course of the criminal investigation into the
events of 23-24 August 2004 which ended with the decision of 15
February 2005. That decision was upheld by the domestic courts at two
judicial instances on 6 June and 16 August 2005 respectively
(see paragraphs 36, 37-39 and 41).
- The
Court further notes that the authorities accepted the validity of the
medical report of 24 August 2004 and thus the existence of the
applicant’s injuries. Indeed, the findings of the report were
essentially confirmed during the applicant’s medical
examination at the bureau of forensic examinations two days later on
26 August 2004 (see paragraph 23). The applicant’s allegations
of ill-treatment were rejected with reference to the lack of any
evidence implicating the policemen (see paragraph 36). The Court
notes that the medical report was drawn up by the doctor very shortly
after the events at issue (see paragraphs 18, 19 and 20) and there is
nothing in the case file or the parties’ submissions to suggest
that the injuries described in the report had been inflicted either
before the applicant’s arrest on 23 August 2004 or in the
period following his release on the next day.
- In
fact, the investigating authorities did not bother to collect
evidence from two key witnesses, Judge P. of the Ramonskiy District
Court and prosecutor N. of the Ramonskiy District Prosecutor’s
office, who saw the applicant in person on the morning after the
events at issue (see paragraphs 14-18) and who could have given
them very detailed information in this connection.
- On
the basis of all the material placed before it, the Court finds that
neither the authorities at the domestic level nor the Government in
the proceedings before the Strasbourg Court have advanced any
convincing explanation as to the origin of the applicant’s
injuries (see, by contrast, Klaas v. Germany, 22 September
1993, §§ 29-31, Series A no. 269). The Court therefore
concludes that the Government have not satisfactorily established
that the applicant’s injuries were caused otherwise than -
entirely, mainly, or partly - by the treatment he underwent while in
police custody (see the Ribitsch judgment, cited above, § 34).
(c) Assessment of the severity of
ill-treatment
- As to the seriousness of the acts of ill-treatment
complained of, the Court reiterates that in order to determine how a
particular form of ill-treatment should be qualified, it must have
regard to the distinctions embodied in Article 3 (see Aksoy
v. Turkey, 18 December 1996, § 64, Reports of
Judgments and Decisions 1996-VI; Aydın v. Turkey,
25 September 1997, §§ 83 and 84 and 86, Reports
1997 VI; Selmouni, cited above, § 105; Dikme
v. Turkey, no. 20869/92, §§ 94-96, ECHR 2000-VIII;
and, among recent authorities, Batı and Others v. Turkey,
nos. 33097/96 and 57834/00, § 116, ECHR 2004 IV (extracts),
as well as Menesheva v. Russia, no. 59261/00, § 55, ECHR
2006 III).
- Furthermore,
the Court reiterates its well-established case-law that in respect of
a person deprived of his liberty, any recourse to physical force
which has not been made strictly necessary by his own conduct
diminishes human dignity and is in principle an infringement of the
rights set forth in Article 3 of the Convention (see Tomasi, §
115, and Ribitsch, §§ 38-40, both cited above).
- Turning
to the circumstances of the present case, the Court takes into
account the information contained in the relevant medical reports and
the applicant’s own description of events and finds that the
ill-treatment inflicted on the applicant caused physical suffering
which required in-patient treatment in a hospital. Given these
considerations and in view of the Convention caselaw in this
respect and, in particular, the criteria of severity and the purpose
of the ill-treatment, the Court is persuaded that the accumulation of
the acts of physical violence inflicted on the applicant amounted to
inhuman and degrading treatment with meaning of Article 3 of the
Convention.
- Accordingly,
there has been a breach of Article 3 of the Convention.
2. Alleged failure to carry out an effective
investigation
(a) General principles
- The
Court reiterates that where an individual makes a credible assertion
that he has suffered treatment infringing Article 3 at the hands of
the police or other similar agents of the State, that provision, read
in conjunction with the State’s general duty under Article 1 of
the Convention to “secure to everyone within their jurisdiction
the rights and freedoms defined in ... [the] Convention”,
requires by implication that there should be an effective official
investigation. As with an investigation under Article 2, such an
investigation should be capable of leading to the identification and
punishment of those responsible. Otherwise, the general legal
prohibition of torture and inhuman and degrading treatment and
punishment would, despite its fundamental importance, be ineffective
in practice and it would be possible in some cases for agents of the
State to abuse the rights of those within their control with virtual
impunity (see Jasar v. the former Yugoslav Republic of Macedonia,
no. 69908/01, § 55, 15 February 2007; Matko v. Slovenia,
no. 43393/98, § 84, 2 November 2006; Assenov and Others
v. Bulgaria, 28 October 1998, § 102, Reports
1998 VIII; and Labita v. Italy [GC], no. 26772/95, §
131, ECHR 2000-IV).
- The
minimum standards of “effectiveness” defined by the
Court’s case-law also require that the investigation must be
independent, impartial and subject to public scrutiny, and that the
competent authorities must act with exemplary diligence and
promptness (see Isayeva and Others v. Russia, nos.
57947/00, 57948/00 and 57949/00, §§ 208-13, 24 February
2005, and Menesheva, cited above, § 67).
(b) Application of the above principles in
the present case
- The
Court notes that the parties did not dispute the validity of the
medical report drawn up on 24 August 2004, almost immediately
following the applicant’s arrest and detention between 23 and
24 August 2004, and confirming the presence of various injuries on
the applicant’s body. The Court further observes that the
matter was duly brought before the competent authorities at a time
when they could reasonably have been expected to investigate the
circumstances in question. The applicant’s allegations, which
were detailed and consistent throughout the domestic proceedings and
before this Court, were, at least to some extent, corroborated by a
medical certificate recording an injury to the head and back. The
domestic authorities were therefore under an obligation to conduct an
effective investigation satisfying the above requirements of Article
3 of the Convention.
-
In this connection, the Court notes that the prosecuting authorities,
who were made aware of the applicant’s ill-treatment, carried
out a preliminary investigation which did not result in a criminal
prosecution. The applicant’s ill-treatment complaints were also
subsequently subject to examination by the domestic courts at two
levels of jurisdiction. In the Court’s opinion, the issue is
consequently not so much whether there was an investigation, since
the parties did not dispute that there was one, but whether it was
conducted diligently, whether the authorities were determined to
identify and prosecute those responsible and, accordingly, whether
the investigation was “effective”.
- The
Court reiterates that the applicant was entirely reliant on the
prosecutor to gather the evidence necessary to corroborate his
complaint. The prosecutor had the legal power to interview the police
officers and order their medical examinations, summon witnesses,
visit the scene of the incident, collect forensic evidence and take
all other crucial steps for the purpose of establishing the truth of
the applicant’s account. The Court will therefore assess the
thoroughness of the investigation. In this connection, the Court
notes a number of significant omissions capable of undermining its
reliability and effectiveness.
- First,
the Court observes that the prosecutor
did not launch an investigation after being notified of the alleged
ill-treatment on 24 August 2004 and having seen the applicant’s
condition in person. Instead, he referred the applicant to the
hospital for a medical examination and, instead of collecting vital
evidence in the meantime, waited for almost twenty days for the
applicant to return from hospital with a formal complaint (see
paragraphs 18-25). The Court finds that this omission was indeed a
very serious one, as the timeous medical examination of the police
officers allegedly involved would have dissipated all possible doubt
concerning the applicant’s version of events and, in
particular, his involvement in a fight with the policemen.
- Second,
the Court notes that on the day after the events at issue the
applicant was seen in person by Judge P. of the Ramonskiy District
Court and prosecutor N. of the Ramon District Prosecutor’s
office, who could both have objectively either confirmed or
contradicted the applicant’s account of events (see paragraphs
14 and 18). It appears that the investigating authorities did not
consider these two individuals as witnesses. More generally, a
thorough inquiry into the events between the applicant’s
release from custody and his visit to the prosecutor’s office
and the local hospital would have facilitated an objective assessment
of the applicant’s version of events.
- Third,
the Court would note that the investigators failed altogether to
order medical examinations of the policemen allegedly involved with a
view to identifying any marks on their bodies confirming possible
involvement in a recent fight. The Court would also deplore that the
rest of the evidence in the case file was collected and assessed in a
non-critical manner. Thus, the Court is not convinced that, despite
his reliance on numerous statements made by the police officers as
noted in the relevant decisions, the investigator really questioned
the witnesses, rather than simply collecting their statements. It
appears that no effort was made to clarify the inconsistencies
between the statements of various witnesses. The most glaring example
of such conduct is the fact that two police officers, S. and T.,
vaguely mentioned the use of force in respect of the applicant in
their depositions of 3 September 2004 (see paragraph 28) and that the
competent investigator made no additional inquiries into this episode
at all, either during those interviews or at any later date (see
paragraphs 27-30, 33 and 35-36). The Court, however, is mindful of
the important role which investigative interviews play in obtaining
accurate and reliable information from suspects, witnesses and
victims and, ultimately, the discovery of the truth about the matter
under investigation. Observing the suspects’, witnesses’
and victims’ demeanour during questioning and assessing the
probative value of their testimony forms a substantial part of the
investigative process.
- Having
regard to the above failings of the Russian authorities, the Court
considers that the investigation carried out into the applicant’s
allegations of ill-treatment was not thorough, adequate or effective.
- There
has accordingly been a violation of Article 3 of the Convention under
its procedural limb.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
as regards the complaints about the alleged general unfairness of
various proceedings in which the applicant was involved, having
regard to the materials in its possession, and
in so far as they fall within its jurisdiction, the Court finds that
they have not been sufficiently made out and 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 should be rejected pursuant
to Article 35 §§ 3 (a) 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 over 144,413 euros (EUR) in compensation for
pecuniary damage and EUR 1 million for non-pecuniary damage allegedly
sustained.
- The
Government viewed these claims as unjustified and, in any event,
excessive.
- The
Court does not discern any causal link between the violations found
and the amounts of the pecuniary damage alleged and also considers
that the applicant’s claims are not substantiated by any
documentary evidence. Accordingly, it rejects this part of the claim.
On the other hand, the Court observes that it has found above
that the authorities subjected the applicant to inhuman and degrading
treatment, in breach of Article 3 of the Convention. Under this
provision, it has also found that there was no effective
investigation in respect of the events of 23 August 2004. Having
regard to this as well as to its established case-law, the Court
awards the applicant EUR 20,000 for non-pecuniary damage, plus
any tax that may be chargeable on that amount.
B. Costs and expenses
- The
applicant also claimed EUR 24,982 in respect of costs and expenses
incurred before the domestic courts and the Court.
- The
Government considered that this claim was unsubstantiated.
- 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. Having regard to the material in its
possession, the Court considers it reasonable to award the applicant
the sum of EUR 100 for the legal and postal expenses incurred in
relation to the proceedings before the Court, plus
any tax that may be chargeable to the applicant on that amount.
C. Default interest
- The
Court considers it appropriate that the default interest rate should
be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints concerning the
applicant’s ill-treatment by police officers during his
detention between 23 and 24 August 2004 and the domestic authorities’
failure to investigate the matter admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
3 of the Convention in that the applicant was subjected to inhuman
and degrading treatment;
- Holds that there has been a violation of Article
3 of the Convention in that the authorities failed to carry out an
effective investigation into the applicant’s allegations of
ill-treatment;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final according to
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 20,000 (twenty thousand
euros) in respect of non-pecuniary damage;
(ii) EUR 100 (one hundred
euros) in respect of costs and expenses;
(iii) any tax that may be chargeable to the applicant on
the above amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above 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 18 October 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
