In Russian
FIRST SECTION
CASE OF
MIKHEYEV v. RUSSIA
(Application no. 77617/01)
JUDGMENT
STRASBOURG
26 January 2006
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
Mikheyev v. Russia,
The European Court of Human Rights (First Section),
sitting as a Chamber composed of:
Mr C.L.Rozakis,
President,
Mr P.
Lorenzen,
Mrs S.
Botoucharova,
Mr A.
Kovler,
Mr K.
Hajiyev,
Mr D.
Spielmann,
Mr S.E.
Jebens ,
judges,
and Mr
S.
Nielsen, Section
Registrar,
Having deliberated in private on 5
January 2006,
Delivers the following judgment,
which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 77617/01)
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 Aleksey Yevgenyevich
Mikheyev (“the applicant”), on 16 November 2001.
2. The applicant, who had been granted legal aid, was
represented by Ms O. Shepeleva, Mr Y. Sidorov, lawyers practising in Moscow and
Nizhniy Novgorod, and Ms V. Vandova, a lawyer with “Interrights”, the United
Kingdom. The Russian Government (“the Government”) were represented by Mr P.
Laptev, the Representative of the Russian Federation at the European Court of
Human Rights.
3. The applicant alleged, in particular, that while in
detention on remand he had been tortured by police officers in order to extract
a confession to the rape and murder of a female minor. As a result, he had
jumped out of the window of the police station and broken his spine. He also
complained that the investigation into these events had been ineffective. He
referred to Articles 3 and 13 of the Convention in this respect.
4. The application was allocated to the First Section of
the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber
that would consider the case (Article 27 § 1 of the Convention) was constituted
as provided in Rule 26 § 1.
5. On 24 May 2004 the Court was contacted by a British
human-rights NGO, the Redress Trust, seeking leave to submit written comments as
a third party. The request was refused by the President. At the same time the
President drew the attention of the Redress Trust to the possibility of
reintroducing the request should the case be declared admissible.
6. On 7 October 2004 the Court declared the application
partly admissible.
7. The applicant and the Government each filed
observations on the merits (Rule 59 § 1). In addition, the Redress Trust
reintroduced its request to submit written comments. A request in the same terms
was also filed by a group of Russian NGOs, including the Public Verdict
Foundation, the Demos Centre, the Yoshkar-Ola NGO Man and Law, and the Kazan
Human Rights Centre. In December 2004 these organisations were granted leave by
the President to intervene in the written procedure as a third party (Article 36
§ 2 of the Convention and Rule 44 § 2). After the third parties’ comments were
received, the applicant and the Government filed their observations in reply
(Rule 44 § 5).
8. The Chamber decided, after consulting the parties,
that no hearing on the merits was required (Rule 59 § 3
in fine).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Proceedings against the applicant
9. The applicant was born in 1976 and lives in Nizhniy
Novgorod. At the relevant time he was a police officer in the road traffic
department. On 8 September 1998, while off duty, he and his friend F met MS, a
teenage girl, in Bogorodsk, in the Nizhniy Novgorod region. The applicant gave
MS a lift in his car to Nizhniy Novgorod.
10. On 10 September 1998 MS’s mother informed the
Bogorodsk municipal police of her daughter’s disappearance. At 4 p.m. on the
same day, the applicant was arrested. F was also arrested and brought to
Bogorodsk police station. The applicant and F were questioned by police officers
in relation to the disappearance of MS. However, no charge was brought against
them. Following the questioning, the police seized the applicant’s identity card
and other documents and put him in the detention wing.
11. On the evening of 10 September 1998 the applicant’s
superior officer came to the applicant’s cell and forced him to sign a
resignation statement backdated to 17 August 1998.
12. On 11 September 1998 the police searched the
applicant’s flat, country house, garage and car. They found three gun cartridges
in his car.
13. On 12 September 1998 three officers from Bogorodsk
municipal police, N, T and D, filed an “administrative offence report” with a
judge of Bogorodsk Town Court. The report stated that on the evening of
11 September 1998 the applicant and F had committed a “disturbance of the peace”
at the railway station. On the same date the judge sentenced the applicant and F
to five days’ administrative detention from 11 September 1998.
14. According to the applicant, while in detention in
Bogorodsk police station, he had been repeatedly questioned about the
disappearance of MS. He denied any involvement in her disappearance. He said
that he had requested a lawyer on many occasions, but that his request had been
refused.
15. On 16 September 1998 the police opened a criminal
investigation relating to the ammunition found by the police during the search
of 11 September 1998 (criminal case no. 68205). By this time the term of the
applicant’s administrative detention had expired and the applicant had been
placed in custody in connection with the criminal case. He was transferred to
another detention centre, under the jurisdiction of Leninskiy police department,
who were in charge of the case.
16. The applicant submitted that after his transfer to
the detention centre the questioning had become more intensive and even violent.
For instance, on several occasions the police officers had slapped him and
threatened him with torture in order to extract a confession that he had killed
MS. In particular, they had threatened to apply electric shocks to him or place
him in a cell with “hardcore criminals” who would kill him if they learned he
was a police officer.
17. On 17 September 1998 the applicant was visited by a
lawyer hired by the applicant’s mother several days earlier in connection with
criminal case no. 68205. According to the applicant, during the conversation
with the lawyer he had mentioned that the real reason for his detention was the
disappearance of MS. However, the lawyer replied that she could not take on
another case that she had not been paid for. The next day, according to the
applicant, the police investigator banned all visits by the lawyer to the
applicant.
18. Meanwhile, F testified to the police that he had
seen the applicant rape and kill MS. He indicated to the investigators the place
where they had allegedly hidden the body of MS. A group of policemen went there,
but nothing was found.
19. On 19 September 1998 the applicant was questioned at
Leninskiy police station in the presence of several police and prosecution
officials, including I (the senior police investigator), S (deputy head of the
local office of the Ministry of the Interior), MR (the deputy regional
prosecutor), the Bogorodsk town prosecutor, and a number of policemen of the
Leninskiy police department.
20. The applicant alleged that he had been subjected to
torture in order to make him corroborate F’s confession. According to the
applicant, while he was sitting handcuffed on a chair, police inspectors K and O
had administered electric shocks to his ears through metal clips connected by a
wire to a box. The applicant had been tortured several times in this way. The
applicant had also been threatened with severe beatings and application of an
electric current to his genitals. One of the police officers had told him that
the current could cause his tongue to fall back into his throat, from where it
could be extracted only by means of a safety pin.
21. According to the applicant, the officials from the
prosecutor’s office had not been present in the room where he had been tortured
with electrodes. However, he had twice been brought to another room in the
police station, where he had been repeatedly questioned by those officials,
notably MR. The applicant had complained to MR about the ill-treatment, but the
latter had not reacted, and when the applicant again refused to confess to
murdering MS, MR had ordered the police officers to take the applicant “back to
where he came from”.
22. The applicant submitted that, unable to withstand
the torture and left unattended for a moment, he had broken free and jumped out
of the window of the second floor of the police station in order to commit
suicide. He had fallen on a police motorcycle parked in the courtyard and broken
his spine.
23. The applicant, accompanied by inspector K, was
immediately taken to Hospital no. 33 of Novgorod Region, where he was examined
by Dr M, who established various injuries caused by his fall from the window,
affecting in particular his vertebral column and locomotor system.
24. On the same day the applicant was transferred to
Hospital no. 39. His mother arrived at the hospital and asked Dr K to include
burns to the applicant’s ears in his medical record. However, her request was
refused. She also submitted a request to Dr S, who was in charge of the
applicant’s case, and to the head doctor of the hospital, asking that the burns
be recorded. She received no answer to her requests.
25. On 19 September 1998, the day of the applicant’s
fall from the window, MS returned home unharmed. She explained that on the night
of 8 September 1998 the applicant had offered her a ride in his car. She had
agreed. When they had arrived in Nizhniy Novgorod, he had suggested that she
could spend the night at his place, but she had refused and the applicant had
let her go. MS had gone to friends living in Nizhniy Novgorod, where she had
spent several days, without letting her mother know were she was.
26. On 21 September 1998 the applicant’s detention was
formally discontinued. On 22 September 1998 the applicant underwent spinal
surgery. He remained in hospital until 3 February 1999. On 25 September 1998
criminal case no. 22346 concerning the alleged rape and murder of MS was closed.
However, the applicant became a suspect in another criminal case – no. 22414, in
which he was charged with the abduction of MS.
27. On 1 March 1999 the criminal investigation into the
illegal possession of the gun cartridges was discontinued, on the ground that at
the time of their discovery the applicant had been a police officer and,
therefore, had had the right to possess the ammunition. On 1 March 2000 (the
Government indicated a different date – 10 May 2000), the case concerning the
alleged abduction of MS was also discontinued on the ground that the applicant
had freed MS at her request.
B. Official investigations into the allegations of
ill-treatment
28. On 21 September 1998 an investigator from the
Leninskiy district prosecutor’s office instituted a criminal investigation into
the applicant’s fall from the window of the police station on 19 September 1998
(case no. 68241).
29. The investigator questioned five police officers
from the Leninskiy district police who had participated in the questioning on 19
September 1998. They stated that they had not ill-treated the applicant or seen
him being ill-treated. The police officers said that, in the course of the
interview, inspector K had told the applicant that his friend F had testified to
having seen the applicant rape and murder MS, and that it would be wise for him
to confess. The interview had then been interrupted for a tea break. While the
officers had been busy preparing tea, the applicant had suddenly jumped out of
his chair, run to the window, broken the glass and fallen out.
30. The investigator also questioned F, who submitted
that no pressure had been exerted on him to make a false statement about the
applicant. F stated that he had implicated the applicant out of fear of being
accused of bringing about the disappearance of MS.
31. The investigator further questioned Dr K from
Hospital no. 39, who had examined the applicant after the accident of
19 September 1998. The doctor confirmed that on the day of the accident the
applicant’s mother had mentioned some electrical burns on her son’s ears.
However, all the applicant’s injuries had been caused by his fall from the
window. According to the medical record, the applicant had no electrical burns
to his ears.
32. B, the applicant’s ward-mate in Hospital no. 39, was
also questioned by the investigator. B spoke of burns and abrasions to the
applicant’s ears which may have been caused by an electrical discharge. B stated
that he had worked as an electrician and therefore knew what burns from an
electrical current looked like.
33. The investigator ordered a forensic medical
examination of the applicant. The forensic report, drawn up on 26 October 1998,
stated that the applicant had wounds on the top of his head, scratches on his
forehead and bite marks on his tongue. No burns or other traces of the use of
electrical current were recorded.
34. On 21 December 1998 the investigator discontinued
the criminal proceedings against the police officers for lack of evidence of a
crime. The investigator found that the applicant had been arrested on 10
September 1998 in connection with the disappearance of MS. On 11 September 1998
the police had carried out a search of the applicant’s car and found three gun
cartridges. On the same day the applicant and F had been released. However,
shortly after their release inspector N of the Bogorodsk police had identified
certain factual gaps in their written submissions. Inspectors N and D had
followed the applicant and found him at the town’s railway station. The
applicant had been disturbing passers-by by addressing them with obscene
language. As a result the applicant had been arrested again and on the next day
made the subject of an administrative arrest for disturbance of the peace. On 16
September 1998 a new criminal case had been opened against the applicant in
relation to the gun cartridges found in his car. On 19 September 1998 a
detention order had been issued against the applicant on this new ground. On the
same day he had been transferred to Leninskiy district police station, where he
had been questioned by several police officers, including inspectors K and O.
After the interview the applicant had suddenly jumped out of his chair, broken
the window and fallen out. He had been brought immediately to Hospital no. 39.
On the same day MS had returned home.
35. The investigator referred further to the testimonies
of the police officers and Dr K, the medical records of Hospital no. 39 and the
forensic medical report of 26 October 1998. He also referred to the opinion of a
medical expert, S, which stated that the application of an electrical current
might leave burns on the skin. The investigator disregarded the testimony of B
on the basis that the latter “had no specialist medical knowledge”. The
investigator came to the conclusion that the applicant’s allegations of torture
were unsubstantiated, describing them as a “defence mechanism” in response to
the situation in which he had attempted suicide.
36. On 25 January 1999 the regional prosecutor’s office
reopened the case and handed it to the same investigator for further
investigation. On 25 February 1999 the investigator, referring to the same
evidence as before and using identical wording, discontinued the proceedings
again. He added that the investigative measures referred to by the senior
prosecutor in his decision of 25 January 1999 had already been taken in 1998.
Given the state of the applicant’s health, it was impossible to carry out new
investigative measures, such as confrontations or forensic examinations.
37. On 1 December 1999 the same supervising prosecutor
reopened the case and ordered certain additional investigative measures,
including a medical examination of the applicant and a confrontation between the
applicant and the police officers who had allegedly tortured him. The case was
transferred to another investigator. On 24 February 2000 the investigator
discontinued the proceedings, basing his decision on the same reasoning as in
the decision of 21 December 1998.
38. On 10 March 2000 the same supervising prosecutor
reopened the case for the third time and handed over the file to another
investigator.
39. This time the applicant’s mother was questioned. She
stated that on 19 September 1998 she had arrived at the hospital and had seen
that her son’s ears had been injured. She had asked that the injuries be
recorded but the request had been refused by the hospital doctor, because “they
had been given instructions to that effect”.
40. The investigator also questioned a hospital
attendant and four doctors from Hospital no. 39, who all denied that the
applicant had had injuries other than those caused by his falling out of the
window. One of the patients in Hospital no. 39, where the applicant had been
brought after the accident, confirmed that the applicant had told him about the
torture with electrodes; however, the patient stated that he had seen no traces
of any injuries on the applicant’s ears. F, who had visited the applicant in
hospital, stated that the applicant had told him about the torture, but F had
seen no signs of torture on him.
41. A further witness, the senior officer of the traffic
police department where the applicant had served before his arrest, provided the
investigator with a “psychological profile” of the applicant, describing the
applicant as having a weak personality. The investigator also obtained the
results of a psychological test which the applicant had undergone upon his
appointment to the traffic police. The test revealed that the applicant “had a
tendency to avoid conflict and was a vulnerable person, susceptible to outside
influences”.
42. On 21 July 2000 the proceedings were discontinued.
The investigator concluded that the applicant had jumped out of the window of
his own will, “driven by his personal assessment of the situation, based on
specific psychological features of his personality”.
43. On 10 November 2000 the case was reopened by another
supervising prosecutor. F was questioned anew. This time F testified that while
in Bogorodsk police station, he had been beaten by inspector A in an attempt to
extract a confession to the murder of MS. Between 16 and 19 September 1998 F had
been repeatedly questioned in Leninskiy district police station in Nizhniy
Novgorod. In the course of the questioning I, the senior police investigator,
had slapped and shaken him. I had also mentioned that F would be tortured with
electrodes if he did not confess to the impugned crimes. F had also been
questioned by MR, the deputy regional prosecutor. On 18 September 1998 F had
signed the confession and even located on the map the place where he and the
applicant had allegedly hidden the body.
44. After the incident, F had visited the applicant in
hospital. The applicant had told him about the torture with electrodes. In reply
F had described to the applicant the officer who had threatened him with it, and
the applicant had confirmed that this was the same officer who had participated
in the questioning of 19 September 1998. Later that year he had recounted this
to the investigator in charge of case no. 68241; however, it had been decided
not to include these statements in the official record.
45. On 29 December 2000 the investigation was again
discontinued by an investigator from the prosecutor’s office. On an appeal by
the applicant on 27 March 2001, the Nizhegorodskiy District Court of Nizhniy
Novgorod quashed the decision, ordering the prosecution to carry out a further
investigation. The court noted,
inter alia,
that the applicant’s submissions were consistent and detailed, and that the case
should be investigated more thoroughly. The court ordered other patients from
the hospital where the applicant had been brought after the accident to be
questioned. The court also deemed it necessary for the applicant to be examined
by an expert in psychiatry and psychology.
46. The proceedings were resumed. This time the
prosecution investigator questioned Dr M, who had been on duty in Hospital no.
33, where the applicant had been brought immediately after the accident. The
doctor stated that he had not noticed or treated any injuries to the applicant’s
ears. The same evidence was reiterated by Dr K and Dr S. They both confirmed
that the applicant’s mother had requested them to re-examine the applicant’s
ears on several occasions, but that they had not identified any injuries. Five
patients from Hospital no. 39 testified that the applicant had told them about
being tortured with electrodes, but that they had seen no signs of any injuries
on the applicant’s ears. The same testimony was given by F.
47. The investigator also ordered a psychological and
psychiatric examination of the applicant. The examination showed that the
applicant was mentally sane, but had been traumatised by the accident and had a
lasting physical disability as a result of it. At the time of the examination,
the applicant’s mental state was characterised by euphoric reactions,
amiability, emotionality and dependence on a stronger personality, namely his
mother. He did not display any suicidal tendencies. The report stated that it
was impossible to draw any conclusions as to the applicant’s mental state at the
time of the accident.
48. On 19 May 2001 the proceedings were discontinued by
the investigator on the same grounds as before.
49. By letter of 5 August 2002 the Nizhniy Novgorod
regional prosecutor’s office informed the applicant that the investigation had
been reopened and sent to the Leninskiy prosecutor’s office with relevant
instructions for additional investigation. The applicant requested that the
prosecution service question V, one of the patients in Hospital no. 39.
50. On 5 September 2002 the prosecution service
discontinued the investigation, finding that no criminal offence had been
committed and indicating,
inter alia,
that it had been impossible to find V at his place of residence. The
investigator concluded that the applicant’s allegations of torture were
supported only by his own submissions, which, in the light of other evidence
obtained in the course of the investigation, had been found to be untrue.
51. Knowing that V was disabled and a wheelchair user,
the representatives of the applicant contacted V and learned that the execution
of the request to question V had been assigned to inspector O, one of the police
officers involved in the alleged torture. Inspector O reported that on several
occasions he had tried to question V, but had been unable to find him at his
address. On 26 September 2002 V explained to the applicant’s representatives
that someone introducing himself as an investigator had telephoned him once and
said that he needed to question him. V had agreed to make a statement, but the
person had never called back.
52. On 28 October 2002 the Nizhniy Novgorod regional
prosecutor’s office annulled the decision of 5 September 2002. On 28 November
2002 the Leninskiy district prosecutor’s office discontinued the investigation
yet again on the same grounds. The applicant appealed against the decision to
discontinue the investigation. By letter of 24 July 2003 the applicant was
informed that the Nizhniy Novgorod regional prosecutor’s office saw no reason to
overturn the decision to discontinue the investigation.
53. According to the respondent Government, the regional
prosecutor reopened the investigation on 6 November 2003 and transferred the
case to the Leninskiy district prosecutor’s office. Apparently, by the end of
December 2003 the case had been closed again. On 19 January 2004, according to
the applicant, the investigation was reopened. On 26 January 2004 the case was
transferred from the Leninskiy district prosecutor’s office to the department of
the regional prosecutor’s office dealing with investigations into cases of
particular importance.
54. F was questioned once more. He testified that while
being questioned in Leninskiy district police station in connection with the
disappearance of MS he had been beaten by the police officers. They had also
threatened to torture him with electrodes.
55. On 19 February 2004 the investigator from that
department closed the case again, concluding that no evidence of ill-treatment
of the applicant had been obtained and that the actions of the police officers
had been lawful. On 4 March 2004 the case was reopened, before being closed
again on 4 July 2004. On 3 August 2004 the case was reopened by the regional
prosecutor’s office. On 6 September 2004 the case was closed. It was then
reopened, and, according to the Government’s submissions, closed again on
20 October 2004. On 22 November 2004 the regional prosecutor reopened the
investigation. According to the Government, the deadline for the new
investigation was 2 April 2005.
56. On an unspecified date in 2005 the prosecutor’s
office brought charges against two policemen, K and SM, who had participated in
the questioning of the applicant on 19 September 1998. The case file, together
with a bill of indictment, was eventually forwarded to the Leninskiy District
Court of Nizhniy Novgorod for examination.
57. In the course of the trial the court questioned a
large number of witnesses. Hence, it questioned K, SM, and fifteen other police
officers who had participated in the questioning of 19 September 1998 or had
been in Leninskiy police station on that day. They all denied that they had
tortured the applicant or had heard of any such torture. The court further
questioned VK, a former police investigator, who had been in charge of the
applicant’s case but had not taken part in his questioning. She testified that
she had heard from her colleagues that the applicant had jumped out of the
window because he had been tortured with electrodes.
58. The court also heard evidence from the applicant,
his mother, F, MS, and the doctors at the hospital where the applicant had been
placed after the incident. They confirmed their initial submissions. An expert
witness appeared before the court. He testified that in certain conditions
electric current might leave no traces on the human body. The court also
questioned VZ, who in August 1998 had been brought to Leninskiy police station
on suspicion of theft. According to VZ, two policemen had questioned him and
then tortured him with electrodes in the same way as the applicant described.
59. The court heard other witnesses and examined
exhibits and materials collected in the course of the pre-trial investigation.
Thus, the court read out the testimonies of B, V, and S, the applicant’s
ward-mates in Hospital no. 39, and examined the results of medical and
psychiatric expert examinations of the applicant. The court also examined a
piece of paper which had been found during the search of the office where the
applicant had been questioned on 19 September 1998. It contained an unfinished
passage describing the events of 10 September 1998, when MS had disappeared,
under the title “Voluntary confession”. The whole text had been written by the
applicant.
60. On the basis of the above evidence the court
established that on 19 September 1998 the applicant had been brought to
Leninskiy police station, where he had been questioned by several officials from
the police and the prosecutor’s office. They had requested him to confess to
having raped and murdered MS and to show them where he had buried the corpse. In
order to extract a confession from the applicant, police officers K and SM had
administered electric shocks to the applicant using a device connected to his
ears. The court noted that in his initial submissions the applicant had
testified that he had been tortured by inspectors K and O. However, following
the identification parade the applicant had identified inspector SM as one of
two officers who had tortured him. Unable to withstand the pain, the applicant
had agreed to confess, but, left unattended for a moment, had attempted suicide
by jumping out of the window. He had fallen on a motorbike parked in the
courtyard of the police station and broken his spine.
61. On 30 November 2005 the Leninskiy District Court of
Nizhniy Novgorod found K and SM guilty under Article 286 § 3 (a)
and (â) of the
Criminal Code (abuse of official power associated with the use of violence or
entailing serious consequences). They were sentenced to four years’ imprisonment
with a subsequent three years’ prohibition on serving in the law-enforcement
agencies. According to the information available to the Court, the judgment of
30 November 2005 is not yet final.
C. Unofficial inquiry into the events of 10 - 19
September 1998
62. In the summer of 1999 two activists from a regional
human rights NGO (Nizhniy Novgorod Committee against Torture) interviewed
several persons about the events of September 1998 complained of by the
applicant. Their submissions were recorded on videotape.
63. In those interviews, F stated that he had been
arrested on 10 September 1998. While in custody, he had been threatened and
slapped several times in order to extract a confession to the murder of MS. On
17 September 1998 he had been questioned by a senior police investigator, I, who
had kicked him and threatened to place him in an “underground cell” where he
would be beaten and tortured with electrodes until his eyes bled.
64. On 18 September 1998 a short confrontation had been
arranged between F and the applicant. F submitted that he had seen bruises on
the applicant’s neck. In the evening F had been questioned again, this time in
the presence of the deputy regional prosecutor MR and the Bogorodsk town
prosecutor, as well as several police officers. MR had threatened to lock F in a
cell with “boy-crazy criminals” who would rape him, or to put him in a cell
together with tuberculosis-infected detainees. He had also threatened that if F
survived in the cell, he would be sentenced to 25 years’ imprisonment or death
row.
65. F had confessed to raping and killing the girl
together with the applicant. At MR’s request, F had named the place where they
had allegedly hidden the corpse. An investigating team had been sent to the
place in question, but had found nothing. On 20 September 1998, after the girl
had come home, F had been released.
66. According to B, the applicant’s ward-mate in
Hospital no. 39, after having been brought to the hospital the applicant had
told him about the circumstances of his arrest and, in particular, about the
torture with electrodes. The applicant had shown B burns on his ears, which
looked like “stripped blisters”. According to M, another patient in the
hospital, before the applicant had been brought to the hospital the police had
warned the personnel that the applicant was a dangerous criminal. The patients
had been required to hide all sharp metallic objects. M also recollected that
there had been something red on the applicant’s ears, “as if somebody has pulled
his ears”. M also remembered that the applicant’s mother had asked the doctors
to examine his ears, but that they had replied that everything had been normal.
V confirmed that, while in the hospital, he had heard from the applicant about
the torture and seen the applicant’s mother asking the doctor to examine his
ears. V also confirmed that the applicant’s ears had been injured, but said that
it did not look like blisters as far as he could remember.
67. The NGO activists also
interviewed L and K, witnesses to the search of the applicant’s car.
68. In December 2000 the NGO
activists questioned F once more with a view to clarifying the discrepancies
between his evidence in the course of the official investigation and his
statements to the NGO activists and the media. F stated that the investigators,
while questioning him as part of the official criminal investigation, had
disregarded his statements about the deputy regional prosecutor MR’s involvement
in the events of September 1998.
D. Other proceedings brought by the applicant with
respect to the events of 10 – 19 September 1998
69. On an unspecified date in 1998 a prosecutor filed a
request for supervisory review of the judgment of 12 September 1998 whereby the
applicant had been sentenced to five days’ administrative detention. On
2 December 1998 the President of the Nizhniy Novgorod Regional Court quashed
that judgment. The President noted that the judgment had been based on the
information from the police officers at Bogorodsk police station, who had
alleged that they had arrested the applicant at the railway station on
11 September 1998. However, at that time the applicant had in fact been detained
in custody in connection with the disappearance of MS.
70. On 23 March 2000 a prosecutor instituted criminal
proceedings against the three Bogorodsk police officers for making false
statements in relation to the alleged arrest of the applicant at the railway
station (criminal case no. 310503). A prosecution investigator confirmed that
the applicant had not been at the railway station on 11 September 1998, having
at that time been detained in custody. However, on 3 November 2000 the charges
against the police officers were dropped following a “change in the situation”
in view of the fact that one police officer had been dismissed from his job,
while the other two had been transferred to other positions within the Ministry
of the Interior.
71. The Government stated that on 25 May 2001 criminal
case no. 310503 had been reopened by the prosecution service and transmitted to
the Pavlovsk town prosecutor’s office for further investigation. On
20 October 2002 the criminal case was closed owing to expiry of the time-limits
for criminal prosecution of the police officers. This decision was quashed by
the town prosecutor and the case was reopened again. On
1 April 2004 the criminal case against the three police officers was forwarded
to the court of first instance together with the bill of indictment. On 27 April
2004 the proceedings were discontinued owing to expiry of the statutory
time-limit for criminal prosecution of the defendants. On 19 November 2004 the
Nizhniy Novgorod Regional Court quashed that decision and remitted the case to
the court of first instance. According to the respondent Government, the
proceedings are still pending.
72. On 19 December 2001 the applicant lodged a civil
claim with the Leninskiy District Court of Nizhniy Novgorod, seeking
compensation for malicious prosecution, his dismissal from his job, the search
of his premises and his detention and ill-treatment by the police. The
applicant’s lawyer asked the court to request from the prosecutor’s office
case-files nos. 68241, 310503 and 68341. The applicant and his representative
maintained that the evidence gathered by the prosecution was necessary to argue
the substantive part of the civil suit. On 22 April 2002 the Leninskiy District
Court of Nizhniy Novgorod requested the files from the respective prosecutor’s
offices. On 6 July 2002 case-file no. 68241 was delivered to the court. It was
withdrawn three days later by the prosecutor’s office. On 27 July 2002 the
case-file was re-submitted to the court. On 1 August 2002, at the prosecutor’s
request, the case-file was returned to the prosecution. On 23 October 2002 the
applicant’s representative asked the court to suspend the civil proceedings.
73. The applicant’s notice of dismissal dated 17 August
1998 was annulled, and the applicant was reinstated in his post. The officers
responsible for his backdated dismissal were subjected to disciplinary
proceedings. However, owing to the applicant’s complete disability, he had to
leave the traffic police.
E. The applicant’s present situation
74. The applicant is disabled and receives a pension
from the State on that basis. The Government indicated that in connection with
the accident he also received a lump-sum insurance indemnity from the State in
the amount of 60,302 Russian roubles (about 1,740 euros at the current exchange
rate).
75. The applicant produced a report, drawn up on 29
November 2004 by Dr L. Magnutova, a specialist in forensic medicine. The report
stated that the applicant suffered from osteomyelitis, his legs were paralysed,
he was unable to work and he suffered from severe dysfunction of the pelvic
organs and loss of sexual function. He was confined to bed and was in permanent
need of a nurse to help him urinate and empty his bowels. The applicant was at
risk of sepsis. He required regular hospital examinations, at least two or three
times a year.
II. RELEVANT DOMESTIC LAW
A. Civil-law remedies against illegal acts by public
officials
76. The Civil Code of the Russian Federation, which
entered into force on 1 March 1996, provides for compensation for damage caused
by an act or failure to act on the part of the State (Article 1069). Articles
151 and 1099-1101 of the Civil Code provide for compensation for non-pecuniary
damage. Article 1099 states, in particular, that non-pecuniary damage shall be
compensated irrespective of any award for pecuniary damage.
B. Criminal-law remedies against illegal acts by
public officials
77. Article 117 § 2 (f) of the Criminal Code of the
Russian Federation makes acts of torture punishable by up to seven years’
imprisonment. Article 110 of the Code makes incitement to suicide liable to a
sentence of up to five years’ imprisonment. Under Article 286 § 3
(a) and
(â) the abuse
of official power associated with the use of violence or entailing serious
consequences carries a punishment of up to ten years’ imprisonment.
C. Official investigation of crimes
78. Under Articles 108 and 125 of the 1960 Code of
Criminal Procedure (in force until 2002), a criminal investigation could be
initiated by a prosecution investigator at the request of a private individual
or of the investigating authorities’ own motion. Article 53 of the Code stated
that a person who had suffered damage as a result of a crime was granted the
status of victim and could join criminal proceedings as a civil party. During
the investigation the victim could submit evidence and lodge applications, and
once the investigation was complete the victim had full access to the case-file.
79. Under Articles 210 and 211 of the Code, a prosecutor
was responsible for overall supervision of the investigation. In particular, the
prosecutor could order a specific investigative measure to be carried out, the
transfer of the case from one investigator to another, or the reopening of the
proceedings.
80. Under Article 209 of the Code, the investigator who
carried out the investigation could discontinue the case for lack of evidence of
a crime. Such a decision was subject to appeal to the senior prosecutors or the
court. The court could order the reopening of a criminal investigation if it
deemed that the investigation was incomplete.
81. Article 210 of the Code provided that the case could
be reopened by the prosecutor “if there are grounds” to do so. Only if the
time-limit for prosecuting crimes of that kind had expired could the
investigation not be reopened.
82. Article 161 of the Code provides that, as a general
rule, the information obtained in the course of the investigation file is not
public. The disclosure of that information may be authorised by the prosecuting
authorities if the disclosure does not impede the proper conduct of the
investigation or go against the rights and legitimate interests of those
involved in the proceedings. The information concerning the private life of the
parties to the proceedings cannot be made public without their consent.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
83. The applicant complained of ill-treatment while in
police custody, especially during the questioning in Leninskiy police station on
19 September 1998, and of a lack of an effective investigation in that respect.
He relied on Article 3, which provides:
Article 3 - Prohibition of torture
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
A. The Government’s preliminary objection
84. The Government submitted that
the
investigation into the events of the present case is still being conducted and
no final decision has yet been taken at the domestic level. Referring to
that, they maintained that the applicant had failed to exhaust domestic remedies
in respect of his complaint of ill-treatment. As to his complaint about the
alleged ineffectiveness of the investigation, it was, consequently, premature.
85. The applicant opposed to that view. He maintained
that by the time of his first application to the Court the criminal
investigation had been discontinued and reopened seven times. No new evidence
could be obtained and all further attempts to investigate the case would be
absolutely futile. The investigation lasted more than seven years and has
finally proven to be ineffective with time. Therefore, in the applicant’s
submissions, he is not obliged to wait until the completion of the
investigation.
86. The Court recalls in this respect that if an
individual raises an arguable claim that he has been seriously ill-treated by
the police, a criminal law complaint may be regarded as an adequate remedy
within the meaning of Article 35 § 1 of the Convention (see
Assenov and others v. Bulgaria, no. 24760/94, 27 June 1996, DR 86-B, p.
71). Indeed,
as a general rule, the State should be given an opportunity to
investigate the case and give answer to the allegations of ill-treatment. At the
same time “an applicant does not need to exercise remedies which, although
theoretically of a nature to constitute remedies, do not in reality offer any
chance of redressing the alleged breach” (Yoyler
v. Turkey, no. 26973/95, 13 January 1997; see also
Akdivar and Others v.
Turkey judgment of 30 August 1996,
Reports of Judgments
and Decisions 1996-IV, p. 1210, § 68).
If the
remedy chosen was adequate in theory, but, in course of time, proved to
be ineffective, the applicant is no more obliged to exhaust it (see
Tepe v. Turkey,
27244/95, Commission decision of 25 November 1996).
87. The Court observes that the circumstances of the
applicant’s fall from the window make out an “arguable claim” of ill-treatment,
that he made use of the possibility to seek the institution of criminal
proceedings against the police officers by putting his complaint in the hands of
the authorities, which were competent to pursue the matter, and that the case is
still pending. On that basis the Court, in its decision on the admissibility of
the present application, found that the Government’s objection should be
examined together with the merits of the case.
88. The Court considers that the Government’s
preliminary objection raises issues which fall to be examined together with the
substantive provisions of the Convention relied on by the applicant. This issue
will be accordingly dealt with below.
89. On 29 December 2005 the Government informed the
Court of the judgment of 30 November 2005 adopted by the Leninskiy District
Court of Nizhniy Novgorod in the criminal case concerning the ill-treatment of
the applicant at the hands of the police (see paragraph 61 above). The
Government indicated that the judgment was not yet final and that they would
keep the Court informed of any further developments.
90. Although the Government have not relied on it, the
Court has examined whether this new development affects the applicant’s status
as a victim within the meaning of Article 34 of the Convention. In this respect
the Court recalls that a decision or measure favourable to the applicant is not
in principle sufficient to deprive him of his status as a “victim” unless the
national authorities have acknowledged, either expressly or in substance, and
then afforded redress for, the breach of the Convention (see, for example,
Amuur v.
France, judgment of 25 June 1996,
Reports of
Judgments and Decisions 1996-III, p. 846, § 36, and
Dalban v.
Romania [GC], no. 28114/95, § 44, ECHR 1999-VI). In the present
case the Court notes firstly that the judgment of 30 November 2005 is not yet
final, and may be reversed on appeal. Secondly, although the fact of
ill-treatment was recognised by the first-instance court, the applicant has not
been afforded any redress in this respect. Thirdly, the judgment of 30 November
2005 dealt only with the ill-treatment itself and did not examine the alleged
flaws in the investigation, which is one of the main concerns of the applicant
in the present case. Therefore, although that judgment should be regarded as an
integral part of the investigative process, it does not, in the circumstances of
the case, affect the applicant’s victim status in respect of the violations
alleged by him.
B. Alleged inadequacy of the investigation
1. The Government
91. The Government did not submit any observations on
the merits of this complaint. Furthermore, in reply to the Court’s request for
additional information and documents, the Government refused to provide the
Court with the materials from the case-file concerning the alleged ill-treatment
of the applicant by the police and the incident of 19 September 1998. They
referred to Article 161 of the Code of Criminal Procedure, which stipulated that
the materials from the pre-trial investigation could be made public only with
the consent of the investigating authority and only if the disclosure did not
interfere with the course of the investigation and with the rights of other
participants in the criminal proceedings.
2. The applicant
92. The applicant complained that the State had breached
its positive obligation to investigate his case under Article 3. The
circumstances of the applicant’s fall from the window amounted, at the very
least, to an arguable claim in respect of the alleged ill-treatment. It was for
the respondent State to carry out an effective and thorough investigation into
his allegations. However, little had been done to investigate the case and the
measures that had been taken were inadequate and ineffective.
93. The applicant pointed to numerous shortcomings in
the official investigation. Thus, his medical examination had been carried out
only on 26 October 1998, that is, more than one month after the events. Taking
into account that the visual signs of such types of torture disappeared very
quickly, the examination had been very belated. The invisible injuries to the
skin following the application of electrodes could be identified by biological
analysis within two weeks of the incident. However, the medical examination of
the applicant had been confined to a simple visual examination.
94. Further, the investigator had failed to hold a
confrontation between the applicant and the police officers who had ill-treated
him. An identity parade had taken place about two years after the incident. The
only two independent witnesses who had been questioned at the first stage of the
proceedings were B and Dr K. For a long period of time (from 21 September 1998
to 24 January 2000) the prosecution had refused to identify and question other
personnel and patients of Hospital no. 39. This had been done only after
numerous complaints by the applicant and his representatives, by which time the
events of September 1998 had nearly disappeared from the memory of the
witnesses.
95. The applicant drew attention to the lack of
independence of the investigation, owing to the dual responsibility of the State
prosecutors’ offices for prosecution and oversight of the proper conduct of
investigations. In the applicant’s case the situation had been aggravated by the
fact that the prosecution official MR, who had supervised the questioning of the
applicant on 19 September 1998, performed the role of Nizhniy Novgorod deputy
regional prosecutor. Accordingly, the investigators from the district and city
prosecutors’ offices had taken their orders from MR. The applicant referred to
F’s submissions of 7 December 2000, when he had said that during previous
questioning the investigators had disregarded his statements about MR’s
involvement in the events of 10-19 September 1998. MR had not been questioned at
any stage of the investigation and could no longer be questioned since he had
died in the summer of 2002.
96. In August 2002 the applicant requested the
prosecution to question V, one of the patients in Hospital no. 39, but to no
avail. On 5 September 2002 the prosecution discontinued the case, indicating,
inter alia,
that it had been impossible to find V at his place of residence. Knowing that V
was disabled and a wheelchair user, the representatives of the applicant
contacted V and discovered the following. Investigator N, who had been in charge
of the applicant’s case, had requested the Leninskiy police to find V. The
execution of this request had been assigned to O, one of the police officers
allegedly involved in the ill-treatment. O had reported that on several
occasions he had tried to question V, but had been unable to find him at his
address. On 26 September 2002 V explained to the applicant’s representatives
that someone introducing himself as an investigator had in fact telephoned him
once and explained that he needed to question him. V had expressed his readiness
to be interviewed, but after the telephone conversation the person had never
called him back again.
97. In the applicant’s opinion the lack of independence
had been reflected both in the way in which evidence was collected and in the
manner of its assessment by the investigators. Thus, the investigator had
disregarded the testimonies of B, the applicant’s hospital ward-mate. He had not
given weight to the testimonies of other patients in the hospital. The
investigation had not been sufficiently thorough to meet the requirements of
Articles 3 and 13 of the Convention and had not reflected any serious effort on
the part of the authorities to discover what had really occurred while the
applicant was in detention. On the contrary, it appeared to have been directed
towards obscuring the wrongs committed and protecting the officials responsible.
98. Finally, the applicant submitted that the
Government’s failure to submit comments on the merits, together with their
unwillingness to produce materials from the criminal investigation, should be
interpreted as supporting the applicant’s position under both the substantive
and the procedural head of Article 3 of the Convention.
3. Third party submissions and the Government’s
reply
99. In their written submissions the Redress Trust
recalled certain general rules established by the European Court and other
international bodies in the field of prohibition of torture and other forms of
ill-treatment. Further, both the Redress Trust and the group of Russian
human-rights NGOs concurred that the Russian system of criminal investigation
lacked a number of crucial procedural safeguards which would, first of all,
guarantee the rights of those under investigation and, second, protect the
interests of victims of torture and alleged ill-treatment by the investigating
authorities. They stressed that in practice the effectiveness of official
investigations into allegations of ill-treatment committed by law-enforcement
officials was very low, mainly because investigations into allegations of
torture were often carried out by the same investigating authorities alleged to
have been involved in the ill-treatment. They indicated other factors which, in
their view, undermined the effectiveness of investigations into allegations of
ill-treatment committed in the course of pre-trial investigations.
100. The Government objected to the participation of the
above NGOs in the proceedings before the Court as third parties, and asked the
Court to reject their conclusions as being abstract and irrelevant. The
Government further informed the Court that, contrary to what the third parties
maintained, legal mechanisms to protect against ill-treatment did exist in
Russia and were on the increase. First, the Russian Constitution prohibited any
form of ill-treatment. Further, Article 9 of the Code of Criminal Procedure
provided that the parties to criminal proceedings should not be subjected to any
violence or threat of violence. In addition, the Criminal Code of Russia laid
down penalties for torture (Article 117), excessive use of official power
(Article 286) and coercion into giving evidence (Article 302). Finally, Article
1070 of the Civil Code provided that damage caused by the illegal arrest,
prosecution, or conviction of an individual should be compensated by the State
irrespective of the liability of the State authorities involved.
101. Finally, the Government maintained that existing
legal mechanisms were effectively implemented in practice. Thus, in 2003 - 2004
the public prosecutors had disclosed 685 breaches of the law by the
law-enforcement agencies, as a result of which 350 officials had been subjected
to disciplinary measures. Between 2000 and 2004 the State prosecution service
had brought five cases under Article 117 § 2 (d) (torture) against officials of
the law-enforcement agencies, four of which had gone before the courts. Within
the same period 42 cases under Article 302 of the Code (coercion into giving
evidence) had been brought, 25 of which were now before the courts. Moreover,
3,388 cases of abuse of power had been brought, resulting in the conviction of
4,204 officials. The Government produced extracts from two judgments, which, in
their submission, confirmed the effectiveness of the above remedies. The
Government also referred to other cases where police officers had been
successfully prosecuted and then convicted by the domestic courts for committing
offences amounting to ill-treatment within the meaning of Article 3 of the
Convention.
4. The Court’s assessment
a) The Court’s evaluation of the evidence in the
present case
102. The Court reiterates that allegations of
ill-treatment must be supported by appropriate evidence (see,
mutatis mutandis,
Klaas v. Germany,
judgment of 22 September 1993, Series A no. 269, pp. 17-18, § 30). To assess
this evidence, the Court adopts the standard of proof “beyond reasonable doubt”.
However, 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 (as in the present case), strong presumptions of fact will
arise in respect of injuries occurring during such detention. In such cases the
burden of proof may be regarded as resting on the authorities to provide a
satisfactory and convincing explanation (see
Salman v. Turkey
[GC], no. 21986/93, § 100, ECHR 2000-VII). In the absence of such explanation
the Court can draw inferences which may be unfavourable for the respondent
Government (see Orhan
v. Turkey, no. 25656/94, § 274, 18 June 2002).
103. In the present case, in order to be able to assess
the merits of the applicants’ complaints and in view of the nature of the
allegations, the Court requested the respondent Government to submit copies of
the criminal investigation files relating, in particular, to criminal case
no. 68241. The Government, relying on Article 161 of the Code of Criminal
Procedure, cited above, refused to provide the Court with the materials sought.
The Government also failed to provide any observations as to the substance of
the case.
104. The Court observes that Article 161 of the Code of
Criminal Procedure, referred to by the Government, leaves the question of public
disclosure of an investigation file to the discretion of the investigating
authorities. It also establishes that the disclosure should not impede the
proper conduct of the investigation or go against the rights and legitimate
interests of those involved in the proceedings. The Government did not explain
how the disclosure of the materials sought might be prejudicial for the
interests of the investigation or the individuals involved. They did not advance
any other plausible explanation for their failure to produce relevant documents
and information, which were clearly in their possession.
105. In these circumstances the Court considers that it
can draw inferences from the Government’s conduct and examine the merits of the
case on the basis of the applicant’s arguments and existing elements in the
file, even though the materials and information submitted by the applicant leave
certain facts unclear. The Court will also take into account the evidence given
at the hearing of Leninskiy District Court of Nizhniy Novgorod on 30 November
2005.
b) Alleged ineffectiveness of the investigation into
the incident of 19 September 1998
106. As regards the effectiveness of the investigation,
the Court takes note of the third parties’ criticism of the Russian system of
criminal investigation, and the Government’s arguments to the contrary. However,
it is not the Court’s task to assess the defects of that system in general. It
will focus on the particular facts of the case in order to establish whether the
flaws of the investigation, complained of by the applicant, made it
“ineffective” within the meaning of Article 3 of the Convention.
i. General principles
107. The Court reiterates, first of all, that the lack
of conclusions of any given investigation does not, by itself, mean that it was
ineffective: an obligation to investigate “is not an obligation of result, but
of means” (see Paul
and Audrey Edwards v. the United Kingdom, no. 46477/99, § 71, ECHR
2002-II). 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,
mutatis mutandis,
Mahmut Kaya v. Turkey,
no. 22535/93, § 124, ECHR 2000-III).
108. Thus, the investigation into serious allegations of
ill-treatment must be thorough. That means that the authorities must always make
a serious attempt to find out what happened and should not rely on hasty or
ill-founded conclusions to close their investigation or as the basis of their
decisions (see
Assenov and Others v. Bulgaria, judgment of 28 October 1998,
Reports
1998-VIII, § 103 et seq.). They must take all reasonable steps available to them
to secure the evidence concerning the incident, including,
inter alia,
eyewitness testimony, forensic evidence, etc. (see,
mutatis mutandis,
Salman v. Turkey,
cited above, § 106, ECHR 2000-VII;
Tanrıkulu v. Turkey
[GC], no. 23763/94, ECHR 1999-IV, § 104 et seq.; and
Gül v. Turkey,
no. 22676/93, § 89, 14 December 2000). Any deficiency in the investigation which
undermines its ability to establish the cause of injuries or the identity of the
persons responsible will risk falling foul of this standard.
109. Further, the investigation must be expedient. In
cases under Articles 2 and 3 of the Convention, where the effectiveness of the
official investigation was at issue, the Court 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). Consideration was given to the
starting of investigations, delays in taking statements (see
Timurtaş v. Turkey,
no. 23531/94, § 89, ECHR 2000-VI; and
Tekin v. Turkey,
judgment of 9 June 1998,
Reports
1998-IV, § 67), and the length of time taken during the initial investigation
(see Indelicato v.
Italy,
no. 31143/96, § 37, 18 October 2001).
110. Finally,
the Court reiterates that for an investigation into alleged ill-treatment by
State agents to be effective, it should be independent (see
Öğur v. Turkey,
[GC], no. 21954/93, ECHR 1999-III, §§ 91-92; see also
Mehmet Emin Yüksel v.
Turkey, no. 40154/98, § 37, 20 July 2004). Thus, the investigation lacked
independence where members of the same division or detachment as those
implicated in the alleged ill-treatment were undertaking the investigation (see
Güleç v. Turkey,
judgment of 27 July 1998,
Reports 1998-IV, §§ 80-82). The independence of the investigation implies
not only the absence of a hierarchical or institutional connection, but also
independence in practical terms (see, for example,
Ergi v. Turkey,
judgment of 28 July 1998,
Reports 1998-IV, §§ 83-84, where the public prosecutor investigating the
death of a girl during an alleged clash between security forces and the PKK
showed a lack of independence through his heavy reliance on the information
provided by the gendarmes implicated in the incident).
ii. Application of these principles in the present
case
111. First,
it cannot be said that the authorities remained absolutely passive in the
present case. Thus, the investigator questioned
several officers from Leninskiy district police station and the staff and
patients of Hospitals no. 33 and 39 and obtained the applicant’s medical record
and the reports of the forensic examination of his physical and mental
condition, etc. However, in the absence of the investigation file it is
impossible for the Court to assess the quality of the investigative measures
performed, that is, to know when and how the evidence was obtained, what were
the questions put by the investigator to the witnesses and experts, how
accurately their answers were reproduced in the resulting documents of the
investigative process, etc.
112. Secondly,
the materials in the Court’s possession, namely the investigators’ decisions to
discontinue the proceedings, disclose a number of significant omissions in the
official pre-trial investigation.
Thus, it is
unclear whether there was an attempt to search the premises where the
applicant had allegedly been tortured, and with what result. The fact that such
a search was carried out and an important piece of evidence (the confession
written by the applicant) was discovered, was mentioned only in the judgment of
30 November 2005. The investigator did not try to find and question individuals
who had been detained with the applicant in Bogorodsk and Leninskiy police
stations between 10 and 19 September 1998 and who could have possessed useful
information about the applicant’s behaviour before the attempted suicide; and it
is unclear whether V, one of the applicant’s ward-mates, was ever questioned by
the investigator.
113. Thirdly, a number of investigative measures were taken very belatedly. The
report on the forensic medical examination of the applicant, for instance, was
dated 26 October 1998, that is, more than five weeks after the alleged
ill-treatment.
The police officers suspected of ill-treatment were brought before the
applicant for identification only about two years after the incident. The
applicant’s mother was questioned only in 2000, and Dr M from Hospital no. 33
not until 2001, despite having been among the first witnesses to see the
applicant after the accident. The investigator did not question personnel and
patients in Hospital no. 39 until January 2000 (with the exception of B and Dr
K, who had been questioned during the initial investigation). Finally, the
applicant’s psychiatric examination was carried out only in 2001, despite the
fact that his mental condition was advanced by the authorities as the main
explanation for his attempted suicide, and as the basis for the discontinuation
of the proceedings.
114. The
Court also notes that all the decisions ordering the reopening of the
proceedings referred to the need for further and more thorough investigation.
However, this direction was not always followed by the investigators in charge
of the case. Hence, the decision to discontinue the proceedings dated 25
February 1999 was based on the same grounds as the decision of 21 December 1998.
The decision of 24 February 2000 was again based on almost identical
evidence and reasoning. Not until 2000, following the transfer of the case-file
to another investigator, did the investigation move forward and new arguments
and information appear in the investigators’ decisions. However, precious time
had been lost, and, in the Court’s view, this could not but have a negative
impact on the success of the investigation.
115. Fourthly, the Court notes that
there was an evident link between the officials responsible for the
investigation and those allegedly involved in the ill-treatment. The Court
recalls that on the day of the incident the applicant was questioned in the
police station of the Leninskiy District of Nizhniy Novgorod. The questioning
took place in the presence of the senior police investigator, the deputy head of
the local branch of the Ministry of the Interior and two prosecution officials –
the Bogorodsk town prosecutor and the deputy regional prosecutor, MR. According
to the applicant, although MR had not been present in the room where the
applicant had been tortured with electrodes, he had not reacted to the
applicant’s complaints of ill-treatment. Moreover, when the applicant refused to
confess to the alleged murder of MS, MR had returned the applicant to the police
officers who, according to the applicant, had tortured him. Furthermore,
although it was known that MR had participated in the questioning of 19
September 1998, and had allegedly failed to react to the applicant’s complaints
of ill-treatment, the investigation of the case was referred to the prosecutor’s
office for the Leninskiy District of Nizhniy Novgorod, which came directly under
the regional prosecutor’s office where MR occupied an important position. In the
years that followed, the investigation remained in the hands of the same
district prosecutor’s office, despite being closed and reopened on numerous
occasions. Only in 2004 was the case forwarded to the department dealing with
investigations into cases of particular importance; however, it still remained
within the jurisdiction of the regional prosecutor’s office.
116. It also
appears that in the course of the investigation the prosecution cooperated
closely with the Leninskiy district police. Thus, inspector O, identified by the
applicant as one of the officers who had tortured him in 1998, was assigned the
task of finding witness V. O reported to the prosecutor’s office that he had
visited V at his place of residence, but had been unable to find him. Later V
testified that nobody from the police had ever tried to visit him at his home.
Hence, an important step in the official investigation was entrusted to one of
the two main suspects.
117. The Court notes the selective and somewhat
inconsistent approach to the assessment and collection of evidence by the
prosecutor’s office. The first decision to close the case, dated 21 December
1998, was based mainly on the testimonies of the police officers who had been
involved in the questioning of the applicant on 19 September 1998, and who,
therefore, could not be regarded as impartial witnesses. The investigator, at
the same time, disregarded submissions made by B, the applicant’s ward-mate in
the hospital. B’s testimonies were rejected by the investigator because B had no
special medical knowledge and, in the investigator’s opinion, could not
distinguish electrical burns from the injuries caused by the applicant’s fall
from the window. At the same time the investigator referred to the opinion of
the applicant’s former superior in the traffic police, who had stated that the
applicant had a weak personality. This testimony was accepted by the
investigator without question, and, moreover, was used as conclusive evidence,
although its author was not a professional in the field of psychology or
psychiatry.
118. Further, although the medical examination of the
applicant on 26 October 1998 did not find any electrical burns on his ears, it
nevertheless established that the applicant had bite marks on his tongue. The
investigator did not explain how these wounds could have been caused by the
applicant’s falling out of the window. In the course of the unofficial inquiry
into the incident of 19 September 1998 (see paragraph 62 above), F testified
that the investigators had disregarded his statements about deputy regional
prosecutor MR’s involvement in the events of September 1998.
119. The Court is particularly struck by the factual
part of the investigator’s report of 21 December 1998. The investigator stated
that on 11 September 1998 the applicant had been released from custody, but then
arrested again for disturbing the peace at the railway station. However, by that
time it had been officially confirmed that the reports of inspectors N, T and D
(who had allegedly arrested the applicant at the railway station) had been
fabricated, and that at the relevant time the applicant had been in the hands of
the police. Nevertheless this account of events was repeated in the decision to
discontinue the proceedings of 25 February 1999. This fact, in the Court’s view,
is such as to discredit the consistency of the official investigation in the
eyes of any independent observer.
120. The Court emphasises
furthermore that the case did not reach the trial stage until seven years after
the events complained of. The pre-trial investigation was closed and then
re-opened more than fifteen times, and it is clear that during certain periods
the investigative process was no more than a formality with a predictable
outcome. Finally, the Court notes that the judgment of 30 November 2005 is not
yet final.
121. In the light of the very
serious shortcomings identified above, especially during the course of the
investigation, the Court concludes that it was not adequate or sufficiently
effective. The Court thus dismisses the Government’s objection based on
non-exhaustion of domestic remedies and holds that there has been a violation of
Article 3 of the Convention under its procedural limb in that the investigation
into the alleged ill-treatment was ineffective.
C. Alleged ill-treatment of the applicant
1. The Government
122. The Government did not submit any observations in
this respect.
2. The applicant
123. The applicant maintained that he had been
ill-treated and tortured by the police in breach of Article 3 of the Convention.
In support of his assertion he submitted the transcripts of oral submissions of
F (the co-suspect in the alleged killing of MS), B, M and V (his ward mate in
Hospital no. 39) taken by two human rights activists in 1999 as part of the
unofficial investigation into the events of September 1998 (summarised above in
the “Facts” part). Further, the applicant alleged that the statements made by
the police officers during the investigation into the allegations of
ill-treatment had been fundamentally inconsistent, reflecting the fallacious
nature of the version of events advanced by the authorities. In support of his
observations the applicant also referred to a number of documents from the
official investigation case-file, but to which he had no access at present.
124. The applicant added that there also existed much
indirect evidence of the ill-treatment. In particular, he indicated that before
his arrest his physical and mental condition had been normal. He had not shown
signs of any psychological disorder or problems which might have led him to
attempt suicide, nor had he borne any physical signs of ill-treatment. Upon
entering the traffic police force he had undergone a psychological examination
which found him to be stable and mentally well adjusted. However, after a few
days in detention he had agreed to confess to the murder and rape of a female
minor, a terrible crime which he had not committed (as became clear later when
MS turned up alive and unharmed), and then, had attempted to commit suicide.
125. Further, the applicant’s account of the events of
10 - 19 September 1998 had not been contested by the respondent Government. The
Government had failed to produce the materials from the criminal investigation
which might have helped the Court to clarify the circumstances of the case. The
Government’s interpretation of Article 161 of the Code of Criminal Procedure had
been incorrect, and, moreover, incompatible with their obligations under Article
34 and 38 § 1 (a) of the Convention.
126. The applicant also drew the Court’s attention to
the circumstances of his arrest, detention and questioning, which, in his view,
revealed a disregard for normal procedures providing safeguards against abuse,
such as maintaining a detailed record of the interview, access to a lawyer etc.
3. The Court’s assessment
127. 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,
judgment of 4 December 1995, Series A no. 336, § 34; 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.
128. The Court notes that the parties did not dispute
the fact that the applicant had sustained serious injuries by jumping out of the
window of the police station, and that he had done it himself. However,
differing versions of what had driven the applicant to attempt suicide were put
forward by the parties. The authorities maintained that the questioning of 19
September 1998 had been lawful, and that the applicant’s own psychological
problems had led him to attempt suicide. The applicant opposed that view. He
stressed that before the incident he had not shown any signs of mental disorder,
and that he had attempted to kill himself solely because he could not withstand
the torture and wanted to bring his sufferings to an end.
129. The Court observes in this respect that at all
stages of the investigation the applicant presented a consistent and detailed
description of who had tortured him and how. That fact was also noted by the
domestic court on 27 March 2001. Further, the applicant’s allegations were
supported by the testimonies of B and the applicant’s mother, who testified that
they had seen electrical burns on his ears and head. V and M, other patients at
the hospital, also confirmed that the applicant’s ears were injured. Finally,
according to the forensic report on the applicant of 26 October 1998, the
applicant had bite marks on his tongue – an injury which may indirectly speak
for the applicant’s account of events. F testified that while in the hands of
the police he had been threatened with the same kind of torture as that
described by the applicant. F testified further that, while in custody, he had
been slapped and threatened with rape and torture with electrodes (see
paragraph 58 above). During a short confrontation with the applicant, F saw
bruises on the applicant’s neck.
130. On the other hand, the forensic medical examination
of the applicant on 26 October 1998 did not reveal any injuries other than those
caused by his falling out of the window. Further, the doctors and paramedics who
treated the applicant at Hospitals no. 33 and 39 did not record any marks left
by electrodes. Several patients from the hospital testified that they had not
noticed any burns on the applicant’s head or ears, although the applicant had
mentioned to them that he had been tortured with electrodes.
131. Therefore, on the sole basis of the pre-trial
material in the Court’s possession, it is difficult to reach any conclusion
“beyond reasonable doubt” as to what exactly happened in Leninskiy district
police station on 19 September 1998. At the same time the Court notes that its
inability to make any conclusive findings in this respect derives from the
failure of the authorities to carry out an effective and adequate investigation
and from the Government’s refusal to provide the materials from the
investigation.
132. The Court observes that before the accident the
applicant had no apparent mental problems. As to his psychological condition, it
is true that one of his former colleagues described him as having a weak
personality. In addition, psychological testing at work had shown that the
applicant had a tendency to avoid conflict and was a sensitive person. However,
these characteristics do not necessarily mean that the applicant was predisposed
to suicide, as the authorities suggested. On the contrary, a genuine attempt at
suicide may require a certain personal resolve. The Court further notes that the
forensic examination carried out in 2001 by experts (see paragraph 47 above),
failed to reveal any suicidal tendencies at the relevant time. In the absence of
any further information from the Government in this respect, the Court draws the
conclusion that the applicant did not, before the accident, suffer from any
mental deficiency which would influence the outcome of this case.
133. Indeed, the applicant was subjected to a very
stressful situation, having been wrongfully suspected of such an appalling
crime. However, no plausible explanation has been adduced as to why the
applicant – who knew he was innocent - would attempt suicide if, as the
authorities suggested, no pressure had been put upon him.
134. Furthermore, the Court takes note of the evidence
which was produced before the Leninskiy District Court. Thus, the court heard
evidence from VZ, who testified that he had been subjected to torture with an
electrical device in exactly the same way as the applicant. Further, the court
interviewed VK, who confirmed that she had heard from her colleagues that the
applicant had attempted suicide because he had been tortured. Finally, the court
examined the “confession” written by the applicant, which also indirectly
confirmed his version of events.
135. In these circumstances, despite the fact that the
judgment of 30 November 2005 has not yet become final, the Court is prepared to
accept that while in custody the applicant was seriously ill-treated by agents
of the State, with the aim of extracting a confession or information about the
offences of which he was suspected. The ill-treatment inflicted on him caused
such severe physical and mental suffering that the applicant attempted suicide,
resulting in a general and permanent physical disability. In view of the
Convention case-law in this respect and in particular the criteria of severity
and the purpose of the ill-treatment (see, among other authorities,
İlhan v. Turkey [GC], no. 22277/93, § 85, ECHR 2000-VII), the Court
concludes that the ill-treatment at issue amounted to torture within the meaning
of Article 3 of the Convention.
136. There has consequently been a violation of Article
3 on that account.
D. Other complaints under Article 3
137. The applicant maintained that the ill-treatment at
issue became possible,
inter alia,
because of serious procedural shortcomings in the course of the criminal
investigation of which he had been the subject in connection with the
disappearance of MS. However, in view of its above findings, the Court does not
deem it necessary to consider this aspect of the case separately.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE
CONVENTION
138. The applicant also claimed to have been denied an
effective remedy in respect of his Convention complaint of ill-treatment, in
breach of Article 13, which states:
Article 13 - Right to an effective remedy
“Everyone whose rights and freedoms as set forth in [the]
Convention are violated shall have an effective remedy before a national
authority notwithstanding that the violation has been committed by persons
acting in an official capacity.”
He submitted that, in cases of alleged ill-treatment
contrary to Article 3, the State authorities were under an obligation under
Article 13 to investigate promptly and impartially.
139. The Government’s arguments on account of that
complaint did not differ from their submissions under Article 3 of the
Convention.
140. The Court recalls that Article 13 of the Convention
requires that where an arguable breach of one or more of the rights under the
Convention is in issue, there should be available to the victim a mechanism for
establishing any liability of State officials or bodies for that breach. The
Contracting States are afforded some discretion as to the manner in which they
conform to their Convention obligations under this provision. As a general rule,
if a single remedy does not by itself entirely satisfy the requirements of
Article 13, the aggregate of remedies provided for under domestic law may do so
(see, among many other authorities,
Kudła v.
Poland [GC], no. 30210/96, § 157, ECHR 2000-XI; see also
Čonka v. Belgium, no. 51564/99, § 75, ECHR 2002-I).
141. However, the scope of the State’s obligation under
Article 13 varies depending on the nature of the applicant’s complaint, and in
certain situation the Convention requires a particular remedy to be
provided. Thus, in cases of suspicious death or ill-treatment, given the
fundamental importance of the rights protected by Articles 2 and 3, Article 13
requires (in addition to the payment of compensation where appropriate) a
thorough and effective investigation capable of leading to the identification
and punishment of those responsible (see
Anguelova v. Bulgaria,
no. 38361/97, §§ 161-162, ECHR 2002-IV;
Assenov and Others v.
Bulgaria, cited above, § 114 et seq.;
Süheyla Aydın v.
Turkey, no. 25660/94, § 208, 24 May 2005).
142. On the basis of the evidence adduced in the present
case, the Court has found that the State authorities were responsible under
Article 3 of the Convention for the injuries sustained by the applicant on 19
September 1998. The applicant’s complaints in this regard were therefore
“arguable” for the purposes of Article 13 (see the
Boyle and Rice v. the
United Kingdom judgment of 27 April 1988, Series A no. 131, p. 23, §
52). The authorities thus had an obligation to carry out an effective
investigation into the circumstances applicant’s fall from the window. For the
reasons set out above (see the Section I of the “Law” part of the judgment) no
sufficiently effective criminal investigation can be considered to have been
conducted. The Court finds therefore that the applicant has been denied a
sufficiently effective investigation in respect of the ill-treatment by the
police and thereby access to any other available remedies at his disposal,
including a claim for compensation.
143. Consequently, there has been a violation of Article
13 of the Convention on that account.
III. ALLEGED VIOLATION OF ARTICLES 34 AND
38 OF THE CONVENTION
144. In his post-admissibility observations the
applicant also complained that the non-disclosure of the materials of the
investigation by the respondent Government was incompatible with their
obligations under Articles 34 and 38 § 1 (a) of the Convention. Article 34 reads
as follows:
“The Court may receive applications from any person,
non-governmental organisation or group of individuals claiming to be the victim
of a violation by one of the High Contracting Parties of the rights set forth in
the Convention or the Protocols thereto. The High Contracting Parties undertake
not to hinder in any way the effective exercise of this right.”
Article 38 § 1 (a) reads as follows:
“1. If the Court declares the application admissible, it
shall
(a) pursue the examination of the case, together with
the representatives of the parties, and if need be, undertake an investigation,
for the effective conduct of which the States concerned shall furnish all
necessary facilities”.
145. Having regard to its above reasoning leading to the
findings under Articles 3 and 13 of the Convention, the Court considers that it
is not necessary to examine these complaints separately under Articles 34 and 38
of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE
CONVENTION
146. 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. The applicant’s claims for just satisfaction
147. First, the applicant claimed
pecuniary damages relating to ongoing medical treatment of the ailments
resulting from the accident of 19 September 1998. He indicated that since 1998
various charitable organisations and private donors had covered the costs of his
medical treatment. However, he could not expect them to support him for years to
come. Therefore, he needed to find other resources. According to the report of
Dr L. Magnutova (see above), the estimated cost of each hospital stay of the
applicant, who needed to be admitted at least two or three times a year, was RUR
60,000 . In addition, the applicant had to spend RUR 300 – 500 daily on
medicines and personal hygiene items. Consequently, the total amount of his
expenses for medical purposes was as much as RUR 362,500 annually. Based
on this assumption the applicant claims RUR 23,562,500 to cover his future
medical expenses up to the age of 65.
148. The applicant further indicated that he had been
officially granted first-degree disability status. He was unable to work and
earn money, needed constant nursing and, since his family was unable to pay for
such services, his mother had had to leave her job to take care of him. The loss
of her earnings, he argued, should be regarded as a material loss. Further, the
applicant claimed the amount of his own lost earnings. Basing his calculation on
the official statistical data on the average salary in Russia during the
relevant period, the applicant claimed RUR 2,736,384 in compensation for his
lost income and RUR 513,072 in compensation for his mother’s lost income.
149. In sum, the applicant claimed RUR 27,351,812 for
pecuniary damage (about EUR 794,000 at the current official exchange rate).
150. The applicant also claimed compensation for
non-pecuniary damage. He indicated that he had been subjected to torture with
electrodes in the police station, which had caused him severe physical and
mental suffering. Moreover, his fall from the window had resulted in a very
serious and painful trauma. His legs were paralysed, he could move around only
in a wheelchair and would never have children. For the rest of his life the
applicant would be dependent on other people. He could not work and experience
professional development and advancement in his career. The building where he
lived had no elevator and he had to undertake strenuous efforts every time he
wanted to go out. Most of the public buildings in Russia lacked special access
facilities for wheelchair users. As a result, his movements and social contacts
were very limited. All these factors caused him constant and severe mental
anguish.
151. Finally, his sufferings had been aggravated by the
authorities’ consistently negative attitude towards him and their refusal to
recognise their liability for the accident. He had been labelled humiliatingly
as a person of unstable character who had tried to excuse his attempted suicide
by accusing police officers. This made the applicant feel miserable, helpless
and frustrated.
152. On the basis of the above the applicant claimed
RUR 22,530,000 in respect of non-pecuniary damage (approximately EUR 654,000 at
the current official exchange rate).
B. The Government’s position on just satisfaction
claims
153. In reply to the applicant’s claims for just
satisfaction the Government noted that the civil proceedings initiated by the
applicant before the Leninskiy District Court of Nizhniy Novgorod were still
pending. These proceedings had been stayed at the applicant’s own request
pending the result of the criminal investigation. The time-limit for completion
of the investigation had been extended until 2 April 2005 by the Deputy
Prosecutor General. Hence, the Government concluded, since the proceedings at
national level had not yet been completed, the applicant had an opportunity to
obtain compensation in the domestic courts. Therefore, his claims for just
satisfaction were premature.
154. Alternatively, the Government regarded the amount
claimed by the applicant as excessive and unsubstantiated.
C. The Court’s assessment
1. Pecuniary damage
155. At the outset, the Court considers that the fact
that the applicant may still receive an award in respect of pecuniary damage
under the domestic legal proceedings does not deprive him of his right to claim
compensation under Article 41 of the Convention. The Court may examine this
issue even if domestic proceedings of a similar nature are still pending; any
other interpretation of Article 41 of the Convention would make this provision
ineffective (see,
mutatis mutandis,
De Wilde, Ooms and
Versyp v. Belgium
(former Article 50),
judgment of 10 March 1972, Series A no. 14,
§ 14 et seq.).
156. The Court further reiterates that there must be a
clear causal connection between the damage claimed by the applicant and the
violation of the Convention and that this may, in the appropriate case, include
compensation in respect of loss of earnings (see
Barberà, Messegué and
Jabardo v. Spain (former Article 50), judgment of 13 June 1994, Series A
no. 285-C, §§ 16-20).
157. The Court has found that the applicant was
tortured, as a result of which he attempted suicide. The authorities are thus
responsible for the consequences ensuing from the incident of 19 September 1998.
The applicant is now unable to work, and a considerable amount of money is
required to continue his treatment. Consequently, there is a causal link between
the violation found and the reduction in the applicant’s earnings and his future
medical expenses (see, by contrast,
Berktay v. Turkey,
no. 22493/93, § 215, 1 March 2001, where no casual link between the
ill-treatment and the current psychological problems of the applicant was
established by the Court).
158. The Court further reiterates that a precise
calculation of the sums necessary to make complete reparation
(restitutio in
integrum) in respect of the pecuniary losses suffered by an applicant may
be prevented by the inherently uncertain character of the damage flowing from
the violation (see
Young, James and Webster v. the United Kingdom (former Article 50),
judgment of 18 October 1982, Series A no. 55, § 11). An award may still be made
notwithstanding the large number of imponderables involved in the assessment of
future losses, though the greater the lapse of time involved the more uncertain
the link between the breach and the damage becomes (see
Orhan v. Turkey,
no. 25656/94, § 426 et seq., 18 June 2002). The question to be decided in such
cases is the level of just satisfaction, in respect of either past or future
pecuniary loss, which it is necessary to award to an applicant, and is to be
determined by the Court at its discretion, having regard to what is equitable
(see Sunday Times v.
the United Kingdom (former Article 50), judgment of 6 November 1989,
Series A no. 38, p. 9, § 15, and
Lustig-Prean and
Beckett v. the United Kingdom
(Article 41),
nos. 31417/96 and 32377/96, §§ 22-23, ECHR 2000).
159. The Court notes that the applicant’s claim as
regards future medical expenses and loss of income was based on the report of Dr
L. Magnutova, indicating the estimated annual cost of medical treatment for the
applicant, the official data on average salaries in Russia and the assumption
that he would have continued working until the age of 60 and that his life
expectancy would be 65. The Government did not produce any alternative
calculation in respect of the alleged future expenses or loss of income.
160. The Court observes that in some previous cases
where the loss of future earnings was at issue, the Court based its calculations
on the actuarial calculations of capital needed for maintaining a certain level
of income, produced by the applicants’ representatives (see
Aktaş v. Turkey,
no. 24351/94, § 350, ECHR 2003-V, and
Orhan v. Turkey,
cited above,
§ 433). The same approach may be applied to the calculation of future
expenses. In the present case, however, the overall amount claimed by the
applicant was calculated simply by multiplying his annual medical expenses by
average life expectancy in Russia. The amount claimed under the head of loss of
future income was calculated in the same way.
161. Therefore, even assuming
that all the calculations and data supplied by the applicant are correct, the
Court considers that the method of calculation applied in the present case is
not in line with the Court’s approach to the calculation of future losses.
Furthermore, the calculation of his lost income does not include the amount
which he collects as a disability pension. Therefore, the Court cannot accept
the final figure claimed under this head by the applicant.
162. Nonetheless, bearing in mind the uncertainties of
the applicant’s situation, and the fact that he will undeniably suffer
significant material losses as a result of his complete disability and the need
for constant medical treatment, the Court considers it appropriate, in the
present case, to make an award in respect of pecuniary damage based on its own
assessment of the situation (see,
mutatis mutandis,
Avşar v. Turkey,
no. 25657/94, § 442, ECHR 2001-VII;
Z and Others v. the
United Kingdom [GC], no. 29392/95, § 127, ECHR 2001-V; and
Orhan v. Turkey,
cited above, § 438). Given the seriousness of the applicant’s condition, the
need for specialised and continuous medical treatment and his complete inability
to work in the future, the Court awards him EUR 130,000 under this head, plus
any tax that may be chargeable on this amount.
2. Non-pecuniary damage
163. The Court reiterates that at the time of the
accident the applicant was a healthy young man in permanent employment. While in
the hands of the police he was subjected to torture, which caused him severe
mental and physical suffering. Then, after the accident, he underwent several
operations on his spine. Now he has lost his mobility and sexual and pelvic
function, and is unable to work or have children. He has to undergo regular
medical examinations, and the risk of aggravation of his condition persists.
Given the exceptionally serious consequences of the incident of 19 September
1998 for the applicant, the Court awards him EUR 120,000 in compensation for
non-pecuniary damage, plus any tax that may be chargeable on this amount.
D. Default interest
164. 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
1. Dismisses
the Government’s objection as to the non-exhaustion of domestic remedies and
accepts the applicant’s status as a victim of the alleged violation;
2. Holds
that there has been a violation of Article 3 of the Convention in respect of the
failure to conduct an effective investigation into the applicant’s fall from the
window of the police station on 19 September 1998;
3. Holds
that there has been a violation of Article 3 of the Convention on account of the
ill-treatment inflicted on the applicant while in police custody;
4. Holds
that, in view of the above findings, it is not necessary to examine the other
complaints submitted by the applicant under Article 3 of the Convention;
5. Holds
that there has been a violation of Article 13 of the Convention on account of
the lack of effective remedies in respect of the ill-treatment complained of;
6. Holds
that there is no need to examine separately the applicant’s complaint under
Article 34 and 38 § 1 (a);
7. 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 130,000 (one hundred
and thirty thousand euros) in respect of pecuniary damage and EUR 120,000 (one
hundred and twenty thousand euros) in respect of non-pecuniary damage, to be
converted into Russian roubles at the rate applicable at the date of settlement,
plus any tax that may be chargeable on these 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;
8. Dismisses
the remainder of the applicant’s claim for just satisfaction.
Done in English, and
notified in writing on 26 January 2006, pursuant to Rule 77 §§ 2 and 3 of the
Rules of Court.
Søren
Nielsen Christos
Rozakis
Registrar President
