BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIRST
SECTION
CASE OF DOLGOV v. RUSSIA
(Application
no. 22475/05)
JUDGMENT
STRASBOURG
10
February 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 Dolgov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 18 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 22475/05) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Mr Oleg Vladimirovich
Dolgov (“the applicant”), on 11 May 2005.
- The
applicant, who had been granted legal aid, was represented by Ms O.V.
Preobrazhenskaya, a lawyer practising in Strasbourg. The Russian
Government (“the Government”) were represented by Mrs V.
Milinchuk, former Representative of the Russian Federation at the
European Court of Human Rights.
- The
applicant alleged, in particular, that he had been ill-treated by the
police and that part of his detention had been unlawful.
- On
27 June 2007 the President of the First Section decided to give
notice of the application to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1974 and is now serving his sentence in the
Tula Region.
A. The applicant’s arrest and alleged
ill-treatment
- At
about 11.30 a.m. on 10 April 2003 the cashier desk of the Petelino
psychiatric hospital in the Tula Region was robbed by three men armed
with a submachine gun and a sawn-off shotgun. Two police patrols
arrived at the scene less than five minutes later.
- The
police officers who apprehended the applicant described the events in
the following manner. Officer B. stated, in particular (his statement
to the investigator is dated 17 June 2003):
“I saw three men cross the motorway and disappear
behind the forest shelter belt... I started running across the forest
to intercept the criminals. At that moment I heard a burst of
submachine gun fire. As I emerged out of the forest, I saw two men in
front of me who later turned out to be K. and [the applicant]. K.
wore light-blue jeans and a dark jacket, and [the applicant] wore
dark tracksuit bottoms. K. carried a Kalashnikov submachine gun with
no butt, and [the applicant] had a sawn-off rifle ... I told the
criminals to freeze, drop the guns and offer no resistance. K. and
[the applicant] ... crossed the motorway. Then I shot a few rounds in
burst mode in the direction of the criminals but above their heads
and told them again to freeze. [The applicant] fell on the roadside,
and the rifle flew out of his hands ... K. turned around, saw the
police car and fired several shots in its direction. Then he slipped
and fell. I ran up to him, pointed my gun at him and told him to stop
resistance and drop the weapon. The muzzle of his submachine gun was
pointed at my face, so I kicked the gun out of his hand and used
physical force on him in accordance with section 12 of the Police Act
... During that time, [Officer M.] was trying to tie up [the
applicant] because he was trying to get up and run away ... During
the arrest we had to use physical force on K., [the applicant], and
Sh. because they actively resisted us. As a result, they sustained
injuries but I cannot say what injuries and where because they were
covered in mud.”
- Officer
M., in his statement to the investigator made on 11 April 2003,
testified as follows:
“Three men were running some seventy metres ahead
of us... One of them – the one who was a bit taller, in
light-blue jeans and black jacket – turned to us and fired a
burst from his submachine gun in our direction ... [Officer B.] fired
two shots at the running men ... The men had already crossed to the
roadside in the direction of Novomoskovsk ... but the man in
tracksuit bottoms fell on the roadside and covered his head with his
hands. The man in blue jeans and black jacket fired a burst at the
police car and started going down towards the forest but slipped and
fell on his back ... He pointed his submachine gun at [Officer B.]
who, in turned, pointed his gun at him and told him to drop the
weapon. Meanwhile, I ran up to the second man who had fallen on the
ground, covered his head with his hands and pushed away his sawn-off
rifle ... and I told [Officer S.] to cuff his hands which he did. I
ran up to [Officer B.] and told the man in blue jeans to throw the
gun away. The man reclined on his back and put the gun aside. I
kicked it away and, using martial arts, bent his arm behind his back,
led him away and put him on the ground where handcuffs were applied
to him ...”
- On
the same day Officer S. testified in the same vein:
“... the man in tracksuit bottoms fell on the
roadside and covered his head with his hands... [Officer M.] and I
ran up to the second man who had fallen on the ground and covered his
head; [Officer M.] kicked aside the sawn-off rifle and told me to use
handcuffs on him which I did ...”
- It
appears from Officer Shch.’s statement of 15 July 2003 that he
did not take part in the applicant’s arrest:
“... [Officers B., M., and S.] were running after
them through the forest. [The applicant] fell on the roadside and
[Officer S.] or someone else, I do not remember who, arrested him
...”
- According
to the applicant, he had fallen to the ground immediately after the
police started firing, and covered his head with his arms. The
applicant claimed that a police officer had approached him and kicked
him in the head. His head had jerked and his face had hit gravel,
chipping two teeth.
- The
applicant and two other men were brought to the Shatskoye police
station in the Leninskiy district of the Tula Region.
- The
applicant submitted that he had been brought to an office on the
second floor. Three riot-squad (“OMON”) and two
operational officers had entered the room. They had worn camouflage
fatigues and woven hats. The OMON officers had made him kneel down
with his hands cuffed behind his back. The officers had kicked and
punched him, dealing blows all over his body, including his face and
lips. One officer had hit him several times with a chair leg, another
officer had straightened his right leg out and dealt a strong blow on
his knee. He had been told to strip down and an officer had pushed
the chair leg into his rectum.
- At
8 p.m. the investigator Mr Bu. carried out a visual examination of
the applicant’s person in the presence of two attesting
witnesses and a chemistry specialist. He noted that the applicant’s
face was covered with a “grey substance” and also with a
“blood-like brown substance”. One of his front teeth was
chipped. There were no injuries on the anterior side of his body, but
his other side was covered with bruises and haematomas. The applicant
had a bruise on his right hip and abrasions on both knees.
- On
the following day, 11 April 2003, the applicant was placed in the
temporary detention ward of the Leninskiy district police station.
The applicant wrote a complaint to the prosecutor about the beatings.
- On
13 April 2003 the investigator Mr Bu. refused to institute criminal
proceedings into the applicant’s allegations. Referring to the
arresting officers Mr Shch. and Mr B. who claimed that the applicant
had forcefully resisted the arrest, and to the statements by two
operational officers who denied that the applicant had been beaten at
the police station, the investigator adopted the view that the
visible injuries had been caused during the arrest.
- At
11.15 a.m. on 15 April 2003 a medical expert commissioned by the
investigator of the Leninskiy district prosecutor’s office Mr
M. carried out a detailed examination of the applicant’s
injuries. The expert recorded multiple bruises and abrasions on the
applicant’s face, lips, left ear, right temple and cheek-bone,
back, arms, wrists, right hip and shin, haemorrhage in the sclera of
both eyes, and a broken tooth on the upper jaw. According to the
expert, those injuries had been caused by no fewer than thirteen
blows of a hard blunt object and no earlier than seven days before
the examination.
- On
18 April 2003 the applicant was transferred from the Leninskiy
district police station to remand centre no. IZ-71/1 in Tula. On
arrival at the remand centre he was examined by a doctor. According
to the medical certificate of the same date, the applicant had a
bruise around his right eye, as well as an abrasion and an injury on
his right hip. He told the doctor that he had been beaten at the
police station.
- On
19 June 2003 a deputy Leninskiy district prosecutor issued a new
decision refusing to institute criminal proceedings into the
applicant’s allegations of ill-treatment. The text of the
decision was identical, word by word, to that of the decision of 13
April 2003.
- The
applicant complained to a higher prosecutor. On 19 February 2004 the
acting Leninskiy district prosecutor upheld the decisions of 13 April
and 19 June 2003 as lawful and justified.
- In
November 2003, counsel for the applicant complained about the
ill-treatment to the Uzlovaya town prosecutor, the Tula regional
prosecutor, the Prosecutor General’s Office, the Internal
Security Department of the Tula Regional Police, the Federal Security
Service, and other authorities. On 11 August and 22 December 2003 and
27 January 2004 the applicant also sent complaints about
ill-treatment to the Tula regional prosecutor.
- On
25 December 2003 a deputy Tula regional prosecutor replied to the
applicant’s lawyer that his complaints about ill-treatment had
already been examined and that a decision refusing to institute
criminal proceedings had been made.
- On
18 June 2004 the applicant complained to the trial court about
ill treatment and the authorities’ failure to investigate
his allegations. It is unclear whether any formal response was
received.
- On
2 September 2004 Officers B., M., S., and Shch. and the investigator
Mr Bu. were heard in the witness stand by the trial court. Officer
Shch. stated that the defendants had not offered any resistance
during the arrest and that they had been immediately handcuffed. He
denied using any physical force during the arrest and pointed out
that K. had been dirty but had had no visible injuries. Officer B.
submitted that no force had been employed but he had bent K.’s
arms and handcuffed him. Officer S. confirmed that, once on the
ground, the defendants had no longer resisted the arrest and that
there was no attempt to punish them after the arrest. Officer M.
testified that one of the defendants had been handcuffed, and the
other’s hands had been tied with a belt. The investigator Mr
Bu. said that he was unable to remember any injuries on the
defendants.
- On
10 January 2005 the applicant challenged the investigator’s
decision of 13 April 2003 before a court of general jurisdiction. He
submitted that the inquiry had been incomplete because the
investigator had never interviewed him about the alleged
ill-treatment. The statements by the arresting officers had been
contradictory: in the criminal proceedings they had denied that he
had offered any resistance, whereas the investigator had found that
the injuries had been caused during the arrest. The applicant
enclosed the medical certificates dated 10 April and 15 April 2003.
- On
25 February 2005 the Leninskiy District Court of the Tula Region
dismissed the applicant’s complaint without taking cognisance
of the merits. It held, firstly, that the contested decision did not
restrict the applicant’s constitutional rights or impede his
access to justice and therefore was not amenable to review under
Article 125 of the Code of Criminal Procedure. Secondly, it stated
that an inquiry into the applicant’s allegations of
ill-treatment had been carried out in the framework of criminal
proceedings against him and therefore concerned the evidence in the
criminal case which was pending before the trial court. The District
Court declared itself incompetent to examine the matters which were
being examined by the trial court.
- The
applicant was not present or represented at the hearing before the
Leninskiy District Court. He filed an appeal, in which he complained
that the District Court had not ensured his representation at the
hearing and failed to examine the evidence of ill-treatment he had
submitted.
- On
13 April 2005 the Tula Regional Court upheld, in summary fashion, the
District Court’s judgment. It noted that there had been no
violation of the applicant’s right to defence because both he
and counsel for him had been informed of the hearing date but had not
sought leave to appear.
B. Criminal proceedings against the applicant
- On
12 April 2003 the Leninskiy District Court of the Tula Region
remanded the applicant in custody for an initial two-month period.
- On
16 April 2003 the applicant was charged with an armed robbery of the
hospital.
- On
9 June, 6 August, 14 October, and 29 December 2003 the Uzlovaya Town
Court extended the applicant’s detention until 15 February
2004. On 13 February 2004 it granted a further extension until 10
April 2004.
- On
9 April 2004 the case against the applicant and his co-defendants was
submitted to the Uzlovaya Town Court for trial.
- On
16 April 2004 the applicant complained to the Tula regional
prosecutor that, following the expiry of the last detention order on
10 April 2004, there was no legal basis for his continued detention.
He did not receive a reply.
- On
23 April 2004 the Uzlovaya Town Court gave a decision fixing the date
of the preliminary hearing. The decision did not mention the question
of the applicant’s detention.
- At
the preliminary hearing on 13 May 2004 the Town Court ruled that the
bill of indictment was procedurally defective in that it contained
incorrect information about the applicant’s personal details.
The court decided to return the case to the prosecutor for five days
so that he could remedy these defects. It also rejected applications
for release by the applicant and his co-defendants, noting that the
preventive measure had been imposed lawfully and that there were no
grounds for varying it.
- On
17 May 2004 the prosecutor again sent the case for trial. On 31 May
2004 the Uzlovaya Town Court set the opening date for the trial and
held that all the defendants should remain in custody, without citing
any grounds for the continuation of their detention on remand or
setting a time-limit for it.
- On
4 November 2004 the Uzlovaya Town Court heard the prosecutor’s
application for a further extension of the applicant’s
detention. The applicant and his co-defendants applied for release,
maintaining that the initial six-month period of their detention
pending trial had expired on 9 October 2004.
- The
Town Court held that the six-month period of detention should be
calculated from the date when the case had been sent for trial again,
that is, from 17 May 2004. It extended all the co-defendants’
detention by three months, citing as the ground the complexity of the
case and the large number of victims and witnesses who had not yet
been examined. The applicant filed an appeal. He submitted that, if
the six-month period were to be calculated from 17 May 2004, his
detention from 9 April to 17 May 2004 must have been unlawful. On 17
December 2004 the Tula Regional Court rejected his appeal in summary
fashion, endorsing the reasoning of the Town Court.
- On
10 February 2005 the Uzlovaya Town Court granted a further extension
of the defendants’ detention until 17 May 2005. On 15 April
2005 the Tula Regional Court upheld that decision on an appeal by the
applicant.
- On
19 July 2005 the Uzlovaya Town Court convicted the defendants of four
robberies and sentenced the applicant to ten years’
imprisonment in a high-security institution. On 25 January 2006 the
Tula Regional Court upheld the conviction on appeal.
- The
applicant submitted copies of three articles published in the
regional press in 2004. The articles described the robbery of the
hospital and two other robberies imputed to the applicant and his
co-defendants. The perpetrators were described as “jackals from
Petelino”, “robbers” or a “gang”. The
same photograph accompanied all three articles; the face and upper
body of the person on the photograph were covered with a jacket.
II. RELEVANT DOMESTIC LAW
- The
investigator’s or prosecutor’s decision refusing
institution of criminal proceedings or discontinuing criminal
proceedings, as well as any other acts capable of impairing the
constitutional rights or freedoms of parties to criminal proceedings
or impeding citizens’ access to justice, are amenable to
judicial review by the court located at the place where the pre-trial
investigation is being carried out (Article 125 § 1 of the Code
of Criminal Procedure).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained under Article 3 of the Convention that he was
beaten and ill-treated after the arrest. Article 3 reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Submissions by the parties
- The
Government submitted that the physical force and special means, such
as handcuffs, which had been used on the applicant during his arrest
fell outside the scope of Article 3 for two reasons. Firstly, the
injuries did not result in a deterioration of his health or cause any
lasting consequences. Secondly, the police officers did not use
physical force to cause suffering to the applicant or to humiliate
him; they merely fulfilled their duties, whereas the applicant
resisted them. The use of force did not pursue any other goals, such
as, for instance, obtaining a confession. The Government emphasised
that the applicant had disobeyed the lawful demands of the police
officers and that they had used lawful and reasonable measures for
putting an end to his unlawful conduct. Finally, the Government
submitted that the applicant’s allegations of ill-treatment had
been carefully reviewed by the domestic authorities in compliance
with Article 3 of the Convention.
- The
applicant submitted that he had offered no resistance during his
arrest. He fell to the ground and covered his head with his hands.
The police officers did not claim that they had used any physical
force on him and, in those circumstances, a recourse to physical
force would have been gratuitous and excessive. The Government had
not indicated what kind of physical force had been used and, in any
event, their assertions were contradicted by the testimony of police
officers before the trial court. The applicant maintained that he had
been severely beaten in the police station. Finally, he pointed out
that an inquiry into his allegations of ill-treatment had been
superficial and incomplete: his statement had not been taken down and
the statements by the police officers made in the course of the
pre-trial investigation had been disregarded. The courts had not
examined his complaint.
B. Admissibility
- The
Court considers 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.
C. Merits
1. Compliance with Article 3 as regards the alleged
ill-treatment by police
- As
the Court has stated on many occasions, 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 or degrading treatment or punishment, irrespective of the
victim’s conduct (see Labita v. Italy [GC],
no. 26772/95, § 119, ECHR 2000 IV, and Chahal
v. the United Kingdom, judgment of 15 November 1996, Reports
1996-V, p. 1855, § 79). 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, Series A no. 336, § 34, and Salman
v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII). In
assessing evidence, the Court has generally applied the standard of
proof “beyond reasonable doubt” (see Ireland v. the
United Kingdom, 18 January 1978, § 161, Series A no.
25). However, such proof may follow from the coexistence of
sufficiently strong, clear and concordant inferences or of similar
unrebutted presumptions of fact. Where the events in issue lie
wholly, or in large part, within the exclusive knowledge of the
authorities, as in the case of persons within their control in
custody, strong presumptions of fact will arise in respect of
injuries occurring during such detention. Indeed, the burden of proof
may be regarded as resting on the authorities to provide a
satisfactory and convincing explanation (see Ribitsch, §
34, and Salman, § 100, both cited above).
- The
Government advanced the lawful use of physical force during the
applicant’s arrest as the only version of how his injuries had
been caused. To assess the credibility of the Government’s
version, the Court will note the following facts relating to the
circumstances of his apprehension on 10 April 2003 as indicated by
the documents in the case-file.
- The
applicant was running away holding a sawn-off gun in his hand after
having committed an armed robbery. Several armed police officers
pursued him and his accomplices, in a car and on foot. After Officer
B. had fired a round from his submachine gun in the direction of the
suspected robbers and told them to freeze, the applicant fell to the
ground at the side of the road, dropped his weapon and covered his
head with his hands. On the orders of Officer M., Officer S. ran up
to the applicant, kicked the weapon away and immobilised his hands
with handcuffs.
- The
only mention that any physical force had been used to immobilise the
applicant can be found in the statement of Officer B. who claimed
that the suspected robbers had offered active resistance (see
paragraph 7 above). His statement is, however, contradicted by his
subsequent testimony before the trial court and also by those of
Officers M. and S. who had not witnessed any resistance on the part
of the applicant. It is also important to note that at the time when
Officer S. was applying handcuffs to the applicant, Officer B.’s
attention was diverted to disarming Mr K. and he could hardly follow
in detail the events around him. The statement of Officer S. who had
actually immobilised the applicant does not refer to any use of
physical force against him. Before the trial court, all three
officers – B., M., and S., as well as Officer Shch. who had
been an eye witness to the applicant’s arrest, denied
having had recourse to any physical force against the applicant. In
the absence of any credible evidence in support of the Government’s
version that the applicant had been injured as a result of lawful
recourse to physical force during his apprehension, the Court finds
it unsubstantiated.
- On
15 and 18 April 2003 the applicant underwent two medical
examinations, first by a forensic expert and later by a prison
doctor. Both medical specialists noted multiple bodily injuries on
his person, including bruises and abrasions on his face, back and
extremities, as well as a chipped tooth. The Court cannot exclude the
possibility that some of those injuries, including the chipped tooth
and abrasions on the knees, might have been caused when the applicant
suddenly fell to the ground with his face down during his arrest.
However, the remaining injuries, which, in the opinion of the
forensic expert, had been the product of “no fewer than
thirteen blows of a hard blunt object” cannot reasonably be
accounted for in that manner. The Government did not put forward any
explanation of how those injuries might have occurred.
- The
applicant, on the other hand, maintained that they were a result of
ill-treatment inflicted on him by police and riot-squad officers at
Shatskoye district police station in the Leninskiy district of the
Tula Region. He described in detail how the officers had kicked and
punched him and had hit him with a chair leg. His allegation of
ill-treatment coincides with the findings of the forensic expert who
determined that the injuries had been caused no earlier than seven
days before the examination on 15 April 2003, that is on or around
the day of the applicant’s arrest. It has not been claimed that
the applicant had been injured before his arrest and since he
remained thereafter in custody within the exclusive control of the
Russian police, strong presumptions of fact arise in respect of the
injuries that occurred during his detention.
- On
the basis of all the material placed before it, the Court concludes
that the Government have not satisfactorily established that the
applicant’s injuries were caused otherwise than –
entirely, mainly, or partly – by ill-treatment he underwent
while in police custody.
- As
to the seriousness of the acts of ill-treatment, the Court reiterates
that in order to determine whether a particular form of ill-treatment
should be qualified as torture, it must have regard to the
distinction, embodied in Article 3, between this notion and that of
inhuman or degrading treatment. It appears that it was the intention
that the Convention should, by means of this distinction, attach a
special stigma to deliberate inhuman treatment causing very serious
and cruel suffering (see Aksoy v. Turkey, 18 December
1996, § 64, Reports of Judgments and Decisions 1996-VI;
Aydın v. Turkey, 25 September 1997, §§
83-84 and 86, Reports of Judgments and Decisions 1997-VI;
Selmouni v. France [GC], no. 25803/94, § 105, ECHR
1999 V; 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)).
- In
the instant case the Court finds that the existence of physical pain
or suffering is attested by the medical report and the applicant’s
statements regarding his ill-treatment in the police station. The
Court considers that the extent of the applicant’s injuries
attests to the severity of the ill-treatment to which he was
subjected. In these circumstances, the Court concludes that, taken as
a whole and having regard to its purpose and severity, the
ill treatment at issue amounted to inhuman treatment within the
meaning of Article 3 of the Convention.
- Accordingly,
there has been a violation of Article 3 under its substantive aspect.
2. Compliance with Article 3 as regards the
effectiveness of the investigation
- The
Court reiterates that where an individual raises an arguable claim
that he has been seriously ill-treated in breach of Article 3, that
provision requires by implication that there should be an effective
official investigation. For the investigation to be regarded as
“effective”, it should in principle be capable of leading
to the establishment of the facts of the case and to the
identification and punishment of those responsible. This is not an
obligation of result, but one of means. The investigation into
serious allegations of ill-treatment must be thorough. This 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 of their decisions (see
Assenov and Others v. Bulgaria, 28 October 1998, § 103 et
seq., Reports of Judgments and Decisions 1998 VIII).
They must take the reasonable steps available to them to secure the
evidence concerning the incident, including, inter alia,
eyewitness testimony, forensic evidence, and so on. 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, and a requirement of promptness and
reasonable expedition is implicit in this context (see, among many
authorities, Mikheyev v. Russia, no. 77617/01, § 107
et seq., 26 January 2006, and Assenov, cited above, § 102
et seq.). Further, the investigation must be expeditious. The Court
has often assessed whether the authorities reacted promptly to the
complaints at the relevant time (see Labita v. Italy [GC], no.
26772/95, § 133 et seq., ECHR 2000-IV). It has also given
consideration to the promptness in opening investigations, delays in
taking statements and to the length of time taken for the initial
inquiry (see Indelicato v. Italy, no. 31143/96, § 37, 18
October 2001).
- The
Court considers that medical evidence of damage to the applicant’s
health, together with his allegations of having been beaten by the
police, amounted to an “arguable claim” of ill-treatment.
Accordingly, the authorities had an obligation to carry out an
effective investigation into the circumstances of the alleged
ill-treatment.
- In
the Court’s view, the manner in which the inquiry was conducted
reveals the investigative authorities’ determination to dispose
of the matter in a hasty and perfunctory fashion (compare Denis
Vasilyev v. Russia, no. 32704/04, § 155, 17 December
2009). The first decision refusing the institution of criminal
proceedings was issued just three days after the applicant’s
arrest, even before the forensic examination had been completed. A
second decision was given two months later, on 19 June 2003, but its
text repeated verbatim the text of the first one, without taking
account of the newly available medical evidence and the statements by
the police officer who denied having used any physical force on the
applicant during the arrest. Neither decision mentioned the
applicant’s version of the events. It does not appear that the
investigator heard him in person or arranged a confrontation between
him and the police officers from the Shatskoye police station who had
been allegedly involved in the ill-treatment. These failures alone,
for which no explanation has been provided to the Court, suffice to
render the investigation ineffective.
- It
is further apparent that the applicant was unable to obtain an
effective review of the investigator’s decisions refusing to
institute criminal proceedings. Higher prosecutors rejected his
complaints on several occasions in summary fashion and the courts of
the Tula Region declared them inadmissible on the ground that the
refusal of an inquiry into his allegations of ill-treatment had not
impaired his constitutional rights. Their refusal to rule on the
merits of his complaints was obviously at variance with the explicit
guarantee against torture and inhuman or degrading treatment in
Article 21 of the Russian Constitution and also with the established
practice of other Russian courts. The Court has already found that in
the Russian legal system, the power of a court to reverse a decision
not to institute criminal proceedings is a substantial safeguard
against the arbitrary exercise of powers by the investigating
authorities (see Belevitskiy v. Russia, no. 72967/01, §
61, 1 March 2007, and Trubnikov v. Russia (dec.), no.
49790/99, 14 October 2003). Although in these proceedings the court
of general jurisdiction is not competent to pursue an independent
investigation or make any findings of fact, judicial review of a
complaint has the benefit of providing a forum guaranteeing the due
process of law. In public and adversarial proceedings an independent
tribunal is called upon to assess whether the applicant has a prima
facie case of ill-treatment and, if he has, to reverse the
prosecutor’s decision and order a criminal investigation
(idem.). In the instant case the judicial avenue was
foreclosed to the applicant. It cannot therefore be said that the
applicant’s right to participate effectively in the
investigation was secured (compare Denis Vasilyev, cited
above, § 126).
- In
the light of the foregoing, the Court finds that the authorities
failed to carry out an effective criminal investigation into the
applicant’s allegations of ill-treatment. Accordingly, there
has also been a violation of Article 3 under its procedural limb.
II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
- The
applicant complained that his detention had not been compatible with
the requirements of domestic law and Article 5 § 1 the
Convention, the relevant part of which 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 ...”
A. Admissibility
- The
Court observes that, starting from 12 April 2003, the applicant’s
detention was authorised and extended at regular intervals by the
Leninskiy District Court and the Uzlovaya Town Court of the Tula
Region. The last detention order issued by the Town Court expired on
10 April 2004. It does not appear that during that period there were
deviations from the domestic procedure that were incompatible with
the requirements of the Convention. It follows that this part of the
complaint is manifestly ill-founded and must be rejected in
accordance with Article 35 §§ 3 and 4 of the Convention.
- Following
the expiry of the detention order on 10 April 2004, a new
extension order setting a specific time-limit for the applicant’s
detention was not made until 4 November 2004. The applicant’s
position in the intervening period was arguably at variance with the
requirements of the Convention. Accordingly, the Court considers that
this part of the 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.
- Finally,
the Court notes that from 4 November 2004 to 19 July 2005, when the
applicant was convicted, the applicant’s detention was extended
by successive decisions of the trial court. The trial court acted
within its powers in making those decisions and there is nothing to
suggest that they were invalid or unlawful under domestic law or
incompatible with the Convention requirements. It follows that this
part of the complaint is also manifestly ill-founded and must be
rejected.
B. Merits
- The
applicant submitted that from 10 April to 13 May 2004 he had been
held in custody without judicial authorisation. On 13 May 2004
the trial court had returned the criminal case to the prosecutor but
it had not given any reasons for extending the detention or limited
it in time; this was arbitrary and incompatible with the requirements
of the Convention (here the applicant referred to Nakhmanovich v.
Russia, no. 55669/00, §§ 70-71, 2 March 2006).
From 17 to 31 May 2004 the applicant had once again remained in
custody without judicial authorisation. Lastly, the applicant pointed
out that on 9 October 2004 the initial six-month period of his
detention “during the trial” had expired and from that
date onwards his detention had been unlawful.
- The Government submitted that at the time when the
applicant’s case was under consideration the domestic courts
had interpreted Article 255 of the Code of Criminal Procedure as
permitting the detention of an accused without a court order for up
to six months from the date of receipt of the case file by the trial
court. Even though in 2005 the Constitutional Court had found that
that practice was tainted with arbitrariness and therefore
incompatible with the Constitution, at the material time such
interpretation of Article 255 had been valid and endorsed by all
Russian courts, including the Supreme Court. For that reason, the
applicant’s detention after the date on which the case file had
been referred to the trial court (10 April 2004) was lawful in
domestic terms. The decision of 13 May 2004 did not breach the
requirements of legal certainty and the protection from arbitrariness
because it had established that the prosecutor was to return the case
within five days. After the case had been returned to the trial court
on 17 May 2004, the applicant’s detention had again been
governed by the same interpretation of Article 255 of the Code of
Criminal Procedure. Finally, the Government claimed that the return
of a case to the prosecutor interrupted the running of the six-month
period.
- 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. However, 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 many other authorities, Khudoyorov v. Russia,
no. 6847/02, § 124, ECHR 2005 X).
- On
the facts, the Court observes that on 10 April 2004, that is, one day
after the trial court received the case file from the prosecutor, the
period of the applicant’s detention authorised by the decision
of 13 February 2004 expired. However, no further decision on his
detention was taken.
- The
Court has already found a violation of Article 5 § 1 of the
Convention in many cases against Russia concerning the practice of
holding defendants in custody solely on the strength of the fact that
their case had been referred to the trial court. It has held that the
practice of keeping defendants in detention without judicial
authorisation or clear rules governing their situation was
incompatible with the principles of legal certainty and the
protection from arbitrariness, which are common threads throughout
the Convention and the rule of law (see Isayev v. Russia,
no. 20756/04, §§ 131-133, 22 October 2009; Yudayev
v. Russia, no. 40258/03, §§ 59-61, 15 January
2009; Belov v. Russia, no. 22053/02, §§ 90-91,
3 July 2008; Lebedev v. Russia, no. 4493/04, §§
55-58, 25 October 2007; Shukhardin v. Russia, no.
65734/01, §§ 84-85, 28 June 2007; Belevitskiy v. Russia,
no. 72967/01, §§ 88-90, 1 March 2007; Korchuganova v.
Russia, no. 75039/01, § 57, 8 June 2006; Nakhmanovich,
cited above; and Khudoyorov, cited above, §§
147-151).
- Further,
the Court has recently examined a similar complaint and found a
violation of Article 5 § 1 of the Convention in the case of
Mr Shulenkov who was the applicant’s co-defendant in the
same criminal proceedings (see Shulenkov v. Russia, no.
38031/04, §§ 34-45, 17 June 2010). The Court’s
findings in the above cases are applicable in the instant case, as
the Government did not advance any argument warranting a departure
from the established case-law. Following the expiry of the detention
order on 10 April 2004, the applicant’s detention was not
covered by a judicial authorisation. The Town Court’s decision
of 23 April 2004 did not mention the applicant’s detention and
its subsequent decision of 13 May 2004 merely rejected an application
for release rather than constituting a formal detention order
required under the domestic law. As the Court has emphasised on many
occasions, applications for release filed by a defendant in custody
do not exempt the domestic authorities from the obligation to
authorise his or her detention “in accordance with a procedure
prescribed by law” by issuing a formal detention order, as
provided by Article 5 § 1. Finding otherwise would place on the
defendant, rather than on the authorities, the burden of ensuring a
lawful basis for his or her continued detention (see, e.g., Melnikova
v. Russia, no. 24552/02, § 61, 21 June 2007).
- It
is further noted that on 31 May 2004 the Town Court set the opening
date for the trial and held that the defendants “should remain
in custody”. It did not, however, give any grounds for
maintaining the custodial measure or fix a time-limit for the
extended detention. This situation has also been examined in many
cases against Russia, including that of the applicant’s
co-defendant Mr Shulenkov, in which the Court found that the absence
of any grounds given by the judicial authorities in their decisions
authorising detention for a prolonged period of time was incompatible
with the principle of protection from arbitrariness enshrined in
Article 5 § 1. 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 Avdeyev
and Veryayev v. Russia, no. 2737/04, §§ 45-47, 9 July
2009; Bakhmutskiy v. Russia, no. 36932/02, §§
112-114, 25 June 2009; Gubkin v. Russia, no. 36941/02, §§
112-114, 23 April 2009; Shukhardin, cited above, §§
65-70; Ignatov v. Russia, no. 27193/02, §§ 79-81, 24
May 2007; Solovyev v. Russia, no. 2708/02, §§ 97-98,
24 May 2007; Nakhmanovich, cited above, §§ 70-71;
and Khudoyorov, cited above, §§ 134 and 142).
The Court sees no reason to reach a different conclusion in the
present case. It considers that the decision of 31 May 2004 did not
comply with the requirements of clarity, foreseeability and
protection from arbitrariness and that the ensuing period of the
applicant’s detention was not “lawful” within the
meaning of Article 5 § 1. This finding makes it unnecessary to
examine whether the applicant’s detention was also unlawful
after 9 October 2004 on account of its being in excess of the maximum
six-month period of detention “during the trial”.
- In
the light of the foregoing considerations, the Court finds that there
has been a violation of Article 5 § 1 of the Convention on
account of the applicant’s detention from 10 April to 4
November 2004.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant complained under Article 6 § 2 of the Convention
that he was portrayed as a criminal in newspaper publications. The
Court, however, observes that the newspaper publications did not
mention the applicant by name or reveal his photograph and did not
contain any statements by a public official as to his guilt (see
Shulenkov, cited above, § 54, and Butkevičius v.
Lithuania, no. 48297/99, § 49, ECHR 2002 II).
Accordingly, this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
IV. 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 240,000 euros (EUR) in respect of non pecuniary
damage.
- The
Government submitted that the sum was excessive.
- The
Court likewise considers that the applicant’s claims in respect
of non-pecuniary damage are excessive. Making its assessment on an
equitable basis, it awards the applicant EUR 20,000 under this head,
plus any tax that may be chargeable.
B. Costs and expenses
- The
applicant claimed EUR 1,680 for twenty-eight hours of work by his
representative, Ms Preborazhenskaya, at the rate of EUR 60 an hour.
- The
Government submitted that the amount claimed was excessive and
unreasonable.
- According to the Court’s case-law, an applicant
is entitled to the reimbursement of costs and expenses only in so far
as it has been shown that these have been actually and necessarily
incurred and are reasonable as to quantum. In the present case, the
amount of EUR 850 has already been paid to the applicant by way of
legal aid. In such circumstances, the Court does not consider it
necessary to make an award under this head.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares admissible the complaints concerning
the applicant’s alleged ill-treatment and the effectiveness of
the ensuing investigation and the lawfulness of his detention from 10
April to 4 November 2004, and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
3 of the Convention;
- Holds that there has been a violation of Article
5 § 1 of the Convention on account of the applicant’s
detention from 10 April to 4 November 2004;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 20,000 (twenty
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into Russian roubles at the
rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 10 February 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
