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FIRST
SECTION
CASE OF SHUVALOV v. RUSSIA
(Application
no. 38047/04)
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 Shuvalov 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. 38047/04) 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 Gennadiy Aleksandrovich
Shuvalov (“the applicant”), on 2 September 2004.
- The Russian Government (“the Government”)
were represented by Mr G. Matyushkin, the Representative of
the Russian Federation at the European Court of Human Rights.
- The
applicant alleged, in particular, that he had been ill-treated while
in State custody and that the domestic authorities had failed to
investigate the matter.
- On
4 September 2008 the President of the First Section decided to
give notice of the application to the Government. It was also decided
(pursuant to former Article 29 § 3 of the Convention) to
rule on the admissibility and merits of the application at the same
time.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1973 and lives in Volgograd.
A. Criminal proceedings against the applicant
- On
23 March 2001 the applicant, a former police officer, was arrested,
with two others, on suspicion of drug dealing.
- On
26 March 2001 the applicant was detained pending investigation, and
on 30 March 2001 charges were brought against him.
- On
9 September 2003 the Volgograd Kirovskiy District Court convicted the
applicant of drug dealing and sentenced him to ten years’
imprisonment.
- On 8 June 2004 the Volgograd Regional Court quashed the
judgment on appeal and remitted the case for retrial.
- On 29 June 2006 the Volgograd Kirovskiy District Court
convicted the applicant of drug dealing and sentenced him to five
years and four months’ imprisonment. The judgment was not
appealed against and became final.
- On
22 July 2006 the applicant was released on completing his sentence.
B. Alleged ill-treatment
- On 19 July 2002 officer P. of the Volgograd Regional
remand prison IZ-34/4 (ФБУ
ИЗ № 34/4
ГУФСИН
России
по Волгоградской
области),
where the applicant was detained at the material time, allegedly hit
the applicant several times with a rubber truncheon on the lower back
and buttocks. The applicant could hardly walk afterwards. In the
evening he felt feverish. The doctor on duty was to examine the
applicant. However, according to the applicant, despite his request
the doctor was instructed not to record the injuries.
- On 23 July 2002 the applicant was brought to Volgograd
Kirovskiy District Court for trial. However, he felt unwell, and an
ambulance team was called. The ambulance paramedic discovered bruises
on the soft tissue of the applicant’s buttocks. When he
returned to the remand prison the applicant was examined by a medical
assistant. The latter recorded multiple haematomas on the applicant’s
buttocks, measuring 1.5 x 1.5 cm. On the same day the applicant made
a complaint about the beatings to the Volgograd City Prosecutor’s
Office.
- On 16 August 2002 the chief assistant of the Volgograd
City Prosecutor refused to institute criminal proceedings against
officer P. The decision read as follows:
“[...] The inquiry conducted [into the applicant’s
allegations] established that at 11.15 a.m. on 19 July 2002
[officers P. and Podm. of the Volgograd Regional remand prison
IZ-34/4] took [the applicant] out of cell no. 47 for a talk on
the subject of compliance with the detention regime [...]
[Officer P.] invited officer K. by telephone to come to
his office, no. 4, and bring [the applicant’s] personal file.
Approximately ten minutes later those present went to P.’s
office, where K. informed [the applicant] of the material in the
file. The latter threatened to have criminal proceedings instituted
against K., and to make all others present regret everything, without
offering any further explanation.
At about 12.30 p.m. [the applicant] was taken to a
temporary isolation cell, from where, three hours later, he was
escorted back to his cell.
No physical force or special means were applied to the
[applicant]. According to the records on the use of special means,
officers P., Podm. and K. were not given special means on 19 July
2002.
When he returned to his cell [the applicant] made no
health-related complaints to his cellmates or to the medical unit of
the [remand prison].
During the exercise period on 20 July 2002 [the
applicant] was rubbing his buttocks against the wall of the exercise
yard (explanations by detainees Sh., D., and others), deliberately
causing himself harm.
At 12.12 p.m. on 23 July 2002, having been escorted
to the Kirovskiy District Court, [the applicant] complained to convoy
officers that he felt unwell, mentioning in particular pain in the
area of his kidneys, for which reason an ambulance was called to the
courthouse.
Medical assistant Sh. discovered haematomas on [the
applicant’s] buttocks [...].
[The applicant’s] allegations of “blows to
the kidneys and high blood pressure” were not confirmed. His
health was assessed as relatively satisfactory.
It follows from submissions by detainees D., I., P., and
Sh. that [the applicant] repeatedly expressed discontent with
[officer P.] and was planning to make accusations against him...
In view of the foregoing, [the applicant’s]
allegations were not substantiated...”
- On 8 September and 29 November 2002 the
applicant obtained written statements from his cellmates P., I. and
B., who stated that they had not seen the applicant causing himself
injuries. They further stated that police officer P. had made them
and other inmates sign statements to the contrary.
- In the meantime, in October 2002 the applicant
appealed against the decision of 16 August 2002 to the
Prosecutor General of the Russian Federation.
- In December 2002 the applicant was informed that his
complaint had been referred to the Volgograd Regional Prosecutor’s
Office, which, in its turn, referred the complaint to the Volgograd
Regional Prosecutor supervising the enforcement of legislation in
correctional institutions.
- Soon afterwards the applicant received a letter dated
15 December 2002 from the Volgograd Regional Prosecutor,
informing him that his complaint had been examined and that no
grounds had been found to quash the decision of 16 August 2002.
A copy of the relevant decision was not however made available to the
applicant.
- The applicant tried to challenge the refusal to
institute criminal proceedings against officer P. before the court
examining his criminal case in 2003, during the trial and in 2004 on
appeal. However, neither of the domestic courts considered the
applicant’s arguments.
- Since some considerable time had elapsed since the
quashing of the applicant’s conviction in 2004 and no new trial
had yet started (see paragraphs 9 and 10 above), the applicant
decided to challenge the refusal to institute criminal proceedings
against police officer P. in separate proceedings.
- On an unspecified date in June 2005 he challenged the
refusal before the Volgograd Regional Prosecutor’s Office and
the Tsentralniy District Court of Volgograd.
- On 4 July 2005 the Deputy Prosecutor of the Volgograd
Region quashed the decision of 16 August 2002, because it had been
taken by the wrong person and outside the procedural time-limits. The
decision also referred to the results of the inspection of the case
file material (материалы
служебной
проверки).
An additional investigation was ordered.
- On 7 July 2005 the Tsentralniy District Court of
Volgograd dismissed the applicant’s appeal against the decision
of 4 July 2005.
- However, on 14 July 2005 the Volgograd City Prosecutor
refused to institute criminal proceedings against officer P. The
decision read as follows:
“... Junior inspector [of facility IZ-34/4] Kush.
explained that on 19 July 2002 ... [officers P. and Podm.] took
[the applicant] from cell. 47 to the management and security
office. [Officer K.] was already there. [They] spent about ten
minutes in the office, after which [the applicant] was taken back to
cell. 47. The [officers] had no special equipment on them.
Neither P. nor Podm were issued with rubber truncheons. He had seen
no injuries on [the applicant]; [the applicant’s] behaviour was
normal and, [the latter] made no health-related complaints.
Similar statements were made by junior inspector [of
facility IZ-34/4] G., who confirmed that no physical force had been
applied to [the applicant].
[Officer] K. submitted that on 19 July 2002 ... she had
been showing [the applicant] the material in his personal file,
explaining [to the latter] the lawfulness of his detention.. On that
occasion no violence was used against [the applicant] by the officers
of IZ-34/4.
[Officer Podm.] submitted that on 19 July 2002 together
with [officers P. and K.] at about 11 a.m. he had [had a talk with
the applicant]. [...] On that occasion none of [the officers] had
used violence on [the applicant], beaten him or threatened him.
Medical staff from IZ-34/4 K. and T. submitted that [the
applicant] had not sought medical assistance between 19 July and 24
July 2002.
A medical auxiliary from IZ-34/4 M. submitted that on
23 July 2002 he examined [the applicant] and discovered blue
marks on his buttocks, the origin of which [the applicant] did not
explain. [The applicant] did not seek medical assistance until
24 July 2002.
[Officer P.] [made statements similar to those made by
officers K. and Podm.]...
[According to the IZ-34/4 records], Sh., P., I., D., R.,
B., M., A. [formerly detained with the applicant] were no longer
being held in facility IZ-34/4 [...].
Shakh. confirmed that he had been detained in facility
IZ-34/4 with [the applicant], but in a different cell [...].
Regarding the circumstances of the alleged beatings, he only knew
what [the applicant] had told him, that he had filed a complaint
about the beatings. [...]
The above-mentioned detainees had not confirmed the
alleged beatings at the initial inquiry.
Therefore, it follows that the events outlined by [the
applicant] in his complaint that he had been beaten up by [officer
P.] had not taken place [...].”
- The applicant challenged the above decision before the
court.
- On 2 December 2005 the Volgograd Tsentralniy District
Court did not find grounds for quashing the decision of 14 July 2005.
It concluded that the decision in question had been made following
analysis of all the pertinent information and in full compliance with
the requirements of the domestic law.
- On 14 February 2006 the Volgograd Regional Court
quashed the judgment of 2 December 2005 because it had been
given in the applicant’s absence, without necessary measures
having been taken to ensure that he was duly notified of the hearing
and summons. The case was remitted for fresh examination, with an
instruction to check more thoroughly the arguments set out in the
complaint.
- On 11 April 2006 the Volgograd Tsentralniy District
Court held again that the decision of 14 July 2005 was lawful.
- On 6 June 2006 the Volgograd Regional Court upheld the
above decision on appeal.
C. Proceedings in connection with a flat
- The applicant was involved in court proceedings over
his tenancy rights to a flat, which ended, to the applicant’s
detriment, with final decisions of the Volgograd Regional Court of
26 April and 12 July 2007.
D. Proceedings over salary arrears
- The applicant brought proceedings against his former
employer (the Volgograd police office) for salary arrears and
non-pecuniary damage.
- On 24 August 2005 the Volgograd Regional Court, as the
final appeal court, dismissed the applicant’s claims in full.
II. RELEVANT DOMESTIC LAW
A. Criminal Code
- Abuse of position associated with the use of violence
or entailing serious consequences carries a punishment of up to ten
years’ imprisonment (Article 286 § 3 of the Criminal
Code).
B. Code of Criminal Procedure
- The Russian Code of Criminal Procedure (Law no. 174-FZ
of 18 December 2001, in force from 1 July 2002, the “CCrP”)
states that a criminal investigation may be initiated by an
investigator or prosecutor on a complaint by an individual (Articles
140 and 146). Within three days of receipt of such a complaint the
investigator or prosecutor must carry out a preliminary inquiry and
make one of the following decisions: (1) to open criminal proceedings
if there are reasons to believe that a crime has been committed; (2)
to decline to open criminal proceedings if the inquiry reveals that
there are no grounds to initiate a criminal investigation; or (3) to
refer the complaint to the appropriate investigating authority. The
complainant must be notified of any decision taken. The decision not
to open criminal proceedings is amenable to appeal to a higher
prosecutor or a court of general jurisdiction (Articles 144, 145 and
148).
- The CCrP provides for judicial review of a decision or
(in)action on the part of an inquirer, investigator or prosecutor
which has affected constitutional rights or freedoms. The judge is
empowered to verify the lawfulness and reasonableness of the
decision/(in)action and to grant the following forms of relief: (1)
to declare the impugned decision/(in)action unlawful or unreasonable
and to order the respective authority to remedy the violation; or (2)
to reject the complaint (Article 125).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained under Articles 3 and 13 of the Convention that
he had been ill-treated on 19 July 2002 whilst in State custody and
that the investigation into his complaint had not been effective. The
Court will examine this complaint from the standpoint of the State’s
negative and positive obligations flowing from Article 3, which reads
as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
- The
Court considers that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention and
is not inadmissible on any other grounds. It must therefore be
declared admissible.
B. Merits
1. Submissions by the parties
- Reiterating
the factual circumstances of the case, the general principles of
Article 3 of the Convention as developed in the Court’s
case law and the relevant domestic law, the Government submitted
that the domestic investigating authorities had on two occasions
carefully checked the applicant’s arguments by questioning the
applicant himself, the alleged perpetrator, the latter’s
colleagues and medical staff of Volgograd Region remand prison
IZ-34/4, as well as other inmates, and had taken the decision to
refuse to institute criminal proceedings in the absence of an
indication that a crime had been committed. The domestic court
reviewed the conclusions reached by the investigating authorities and
found them lawful. In such circumstances, the Government concluded
that there had been no breach of Article 3 of the Convention, under
either the substantive or the procedural heads.
- The applicant argued that he could not have caused
himself the injuries in question by rubbing his buttocks against the
walls of the exercise yard. Rubbing would only have left scratches,
not multiple haematomas. The haematomas could only have originated
from the impact of a blunt object, such as, in his case, the rubber
truncheon used by police officer P. The applicant further drew the
Court’s attention to the fact that the Government had failed to
make any comments on the written statements by his cellmates P., I.
and B. (see paragraph 15 above) to the effect that they had not seen
the applicant harming himself during the exercise period on 20 July
2002, and that police officer P. had made them and other inmates sign
statements to the contrary. He further alleged that the additional
inquiry had been based on the material of the initial inquiry without
additionally questioning those involved in the incident. The
applicant concluded, therefore, that the Government’s
conclusion as to the compliance of the domestic authorities with
their obligations under Article 3 of the Convention in his
respect had been unsubstantiated.
2. The Court’s assessment
(a) Alleged ill-treatment of the applicant
(i) General principles
- The
Court reiterates that persons in custody are in a vulnerable position
and that the authorities are under a duty to protect their physical
well-being (see Gladyshev v. Russia, no. 2807/04, § 51,
30 July 2009; Sarban v. Moldova, no. 3456/05, § 77,
4 October 2005; and Mouisel v. France, no. 67263/01,
§ 40, ECHR 2002-IX). In respect of a person deprived of his
liberty, any recourse to physical force which has not been made
strictly necessary by his own conduct diminishes human dignity and is
in principle an infringement of the right set forth in Article 3 of
the Convention (see Sheydayev v. Russia,
no. 65859/01, § 59, 7 December 2006; Krastanov
v. Bulgaria, no. 50222/99, § 53, 30 September
2004; and Ribitsch v. Austria, 4 December 1995,
§ 38, Series A no. 336).
- The
Court further reiterates that to fall under Article 3 of the
Convention ill-treatment must attain a minimum level of severity. The
standard of proof relied upon by the Court is that “beyond
reasonable doubt” (see Avşar v. Turkey,
no. 25657/94, § 282, ECHR 2001-VII). 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 Gladyshev,
cited above, § 52; Oleg Nikitin v. Russia,
no. 36410/02, § 45, 9 October 2008; and Salman v. Turkey
[GC], no. 21986/93, § 100, ECHR 2000-VII).
- Where
domestic proceedings have taken place, it is not the Court’s
task to substitute its own assessment of the facts for that of the
domestic courts and, as a general rule, it is for those courts to
assess the evidence before them (see Klaas v. Germany,
22 September 1993, § 29, Series A no. 269).
Although the Court is not bound by the findings of the domestic
courts, in normal circumstances it requires cogent elements to lead
it to depart from the findings of fact reached by those courts (see
Matko v. Slovenia, no. 43393/98, § 100, 2 November
2006). The Court must apply a particularly thorough scrutiny where
the applicant raises an arguable complaint of ill-treatment (see
Ribitsch, cited above, § 32, and Avşar,
cited above, § 283).
(ii) Application of the above principles
in the present case
- Turning to the facts of the present case, the Court
notes that shortly after the alleged beatings, on 23 July 2002, the
ambulance paramedic discovered bruises on the soft tissue of the
applicant’s buttocks. On the same day the applicant was
examined by a medical auxiliary at the remand prison, who recorded
multiple haematomas on the applicant’s buttocks, measuring 1.5
x 1.5 cm (see paragraph 13 above).
- The
Court considers that the above medical evidence, together with the
fact that the alleged beatings took place while the applicant was
under the authorities’ control in custody, created an
unrebutted presumption of fact that the applicant was subjected to
ill-treatment at the hands of State agents and required the
Government to provide a satisfactory and convincing explanation as to
how those injuries could have originated.
- The
Court observes that, having conducted a police inquiry, the
investigating authorities arrived at the conclusion that the
applicant had inflicted the injuries in question by rubbing his
buttocks against the walls of the exercise yard during the exercise
period on 20 July 2002 (see paragraph 14 above).
- The
Court notes that the above explanation as to the origin of the
applicant’s injuries was not supported by any forensic medical
evidence which would answer the questions as to how and when the
injuries on the applicant’s body had been inflicted (see
paragraph 57 below). Besides, the written statements by three of the
applicant’s former cellmates indicate that they did not see the
applicant harming himself during the exercise period on 20 July
2002, and their previous statements to the contrary had been made
under pressure from officer P. (see paragraph 15 above). No comment
was made on the statements in question by the domestic authorities,
either during the proceedings at domestic level or before the Court.
- Regard
being had to the absence of any consistent or indisputable proof
supporting the account of events put forward by the domestic
authorities, the Court finds it unconvincing and implausible that the
applicant could have sustained multiple haematomas by rubbing himself
against the walls of the remand prison’s exercise yard. It
therefore finds it established to the standard of proof required in
Convention proceedings that the injuries on the applicant’s
body were the result of the treatment about which he complained and
for which the Government bore responsibility.
- Accordingly,
having regard to the nature and the extent of his injuries, the Court
concludes that the State is responsible under Article 3 on account of
the inhuman and degrading treatment to which the applicant was
subjected on 19 July 2002 by police officer P. and that there has
thus been a violation of that provision.
(b) Alleged inadequacy of the
investigation
(i) General principles
- 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, 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 (see Assenov and
Others v. Bulgaria, 28 October 1998, § 102,
Reports of Judgments and Decisions 1998 VIII).
- 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; Mahmut Kaya v. Turkey, no. 22535/93, §
124, ECHR 2000-III; and Mikheyev v. Russia, no. 77617/01,
§ 107, 26 January 2006).
- The
investigation of arguable 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 of their decisions. They must take all reasonable steps
available to them to secure the evidence concerning the incident,
including, inter alia, a detailed statement concerning the
allegations from the alleged victim, eyewitness testimony, forensic
evidence and, where appropriate, additional medical certificates
capable of providing a full and accurate record of the injuries and
an objective analysis of the medical findings, in particular as
regards the cause of the injuries. 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 (see Mikheyev, cited above, § 108,
and Nadrosov v. Russia, no. 9297/02, § 38,
31 July 2008).
- The
investigation into the alleged ill-treatment must be prompt. There
must be a sufficient element of public scrutiny of the investigation
or its results; in particular, in all cases, the complainant must be
afforded effective access to the investigatory procedure (see
Mikheyev, cited above, § 109; Maksimov v. Russia,
no. 43233/02, § 83, 18 March 2010; and Lopata
v. Russia, no. 72250/01, §§ 110, 13 July
2010).
- Finally,
the investigation into alleged ill-treatment by State agents should
be independent (see Öğur v. Turkey, [GC],
no. 21954/93, ECHR 1999-III, §§ 91-92; Mehmet Emin
Yüksel v. Turkey, no. 40154/98, § 37, 20 July
2004; Menesheva v. Russia, no. 59261/00, § 67,
ECHR 2006 III; and Oleg Nikitin, cited above, § 35).
(ii) Application of the above principles
in the present case
- Turning
to the circumstances of the present case, the Court observes that on
23 July 2002 the applicant submitted to the Volgograd City
Prosecutor’s Office a clear and direct statement to the effect
that on 19 July 2002, while he was in Volgograd Regional remand
prison IZ-34/4, he had been beaten up by police officer P. He
substantiated his complaint with medical documents attesting to a
number of bruises on his body, specifically on the buttocks (see
paragraph 13 above). The applicant’s claim was, therefore,
shown to be “arguable”, and the domestic authorities were
placed under an obligation to carry out “a thorough and
effective investigation capable of leading to the identification and
punishment of those responsible”.
- The
Court further observes that on 16 August 2002 the chief assistant of
the Volgograd City Prosecutor refused to institute criminal
proceedings against officer P., finding that the applicant had
inflicted the bruises on himself by rubbing his buttocks against the
walls of the remand prison’s exercise yard during the exercise
period on 20 July 2002. That decision was subsequently quashed on 4
July 2005, essentially on procedural grounds, and an additional
inquiry was ordered. Shortly afterwards, on 14 July 2005, the
Volgograd City Prosecutor took a decision to refuse to institute
criminal proceedings against officer P. It appears that the decision
was based on the material of the previous inquiry (see paragraphs 24
and 39 above). Subsequently, the domestic court at two levels of
jurisdiction reviewed the lawfulness of the decision of 14 July 2005
and found no grounds for quashing it. The issue is consequently not
so much whether there was an investigation as whether it was
conducted diligently, whether the authorities were determined to
identify and prosecute those responsible, and, accordingly, whether
the investigation was effective (see Oleg Nikitin, cited
above, § 39).
- The
Court notes that the decisions of 16 August 2002 and 14 July
2005 refusing the applicant’s request for criminal proceedings
against police officer P. were based on statements by the alleged
perpetrator and his colleagues, on statements by the applicant’s
cellmates, and on the results of the applicant’s medical
examination by the medical auxiliary at the remand prison on 23 July
2002.
- The Court is concerned at the fact that no attempt
whatsoever was made by the investigating authorities to establish the
cause of the applicant’s injuries and the time when they could
have been inflicted. These failures alone, for which no explanation
was provided to the Court, were sufficient to render all the
subsequent investigation ineffective (see Samoylov v. Russia,
no. 64398/01, § 37, 2 October 2008).
- The
Court further observes that the questioning of the applicant’s
cellmates was done by the alleged perpetrator himself. This inference
is made on the basis of written statements by three of the
applicant’s cellmates dating shortly after the first refusal to
institute criminal proceedings, in which they deny having seen the
applicant harming himself, and convey that the statements to the
contrary were extracted from them by police officer P. by means of
intimidation (see paragraphs 15 and 39 above). The Court considers
that entrusting the questioning of the witnesses in a case to a
person who was implicated in the alleged ill-treatment undermines the
requirement for an effective investigation to be independent and
irretrievably undermines its capability of leading to the
establishment of the true circumstances of the case.
- In
view of the foregoing, the Court concludes that the investigation
carried out into the applicant’s allegations of ill-treatment
failed to meet the requirement of effectiveness, in that it had not
been thorough and independent, and, for that reason, was not capable
of leading to the establishment of the facts and to the
identification and punishment of those responsible.
- Accordingly, there has been a violation of Article 3
of the Convention on account of the lack of an effective
investigation into the applicant’s allegations of
ill-treatment.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Finally,
the applicant submitted a number of additional complaints under
Articles 6, 8 and 13 of the Convention and under Article 1 of
Protocol No. 1, relating to the applicant’s trial and to the
civil disputes to which he had been a party.
- However,
having regard to all the material in its possession, and in so far as
these complaints fall within its competence, 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 manifestly ill-founded, 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 11,000 euros (EUR) in respect of non pecuniary
damage.
- The
Government submitted that if the Court were to find a violation, the
finding of such a violation would constitute in itself sufficient
just satisfaction.
- The
Court notes that it has found a violation under both the substantive
and the procedural heads of Article 3 of the Convention on account of
the applicant’s ill-treatment whilst in State custody and the
failure to carry out an effective investigation into the matter. In
these circumstances, the Court considers that the pain, humiliation
and frustration caused to the applicant cannot be compensated for by
the mere finding of a violation. Making its assessment on an
equitable basis, the Court awards the applicant EUR 11,000 in
respect of non-pecuniary damage, plus any tax that may be chargeable
on it.
B. Costs and expenses
- The applicant did not claim costs and expenses.
Accordingly, there is no call 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 under Article
3 of the Convention and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
3 of the Convention on account of the applicant’s ill-treatment
of 19 July 2002;
- Holds that there has been a violation of Article
3 of the Convention on account of the fact that the domestic
authorities failed to carry out an effective investigation;
- Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 11,000
(eleven 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 on the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period, plus three percentage points.
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
