CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 15 janvier 2004

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Rozakis , President ,   Mr   G. Bonello ,   Mrs   F. Tulkens ,   Mr   E. Levits ,   Mr   A. Kovler ,   Mrs   E. Steiner ,   Mr   K. Hajiyev, judges , and   Mr S. Nielsen , Deputy Section Registrar , Having regard to the above application introduced on 20 June 2000, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS The applicant, Miss Olga Yevgenyevna Menesheva, is a Russian national, who was born in 1979 and lives in Bataysk, Rostov Region. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. On 12 February 1999, about midnight, a number of men who introduced themselves as police officers tried to enter the applicant’s flat. According to the applicant, they did not produce any documents and behaved rudely. The applicant did not let them in. On 13 February 1999 at about 4.30 p.m. three men were waiting for the applicant at her door. They were dressed in civilian clothes, behaved rudely and tried to enter the applicant’s flat. At the applicant’s request one of them produced a police identity card No.   A-011527 issued to Police Major Sakhno   A.V. ( майор милиции Сахно А.В. ). The applicant refused to let the people into the flat since they had no authorisation to conduct a search and did not explain the purpose of their visit. The person who introduced himself as Major Sakhno ordered the applicant’s arrest. The men seized the applicant, turned her upside down and threw her into a car which had no police markings on it. While doing so they intimidated the applicant. The applicant was taken to the Zheleznodorozhnyi District police station in Rostov-on-Don ( Отдел внутренних дел Железнодорожного района г.   Ростова-на-Дону ). She was not informed about the reasons for the arrest. In the police station, the applicant was questioned by the Deputy Head of the Criminal Investigation Department ( заместитель начальника уголовного розыска ). He asked where the applicant’s husband was. When she replied that she was not married, the applicant alleges that he started to punch her and throw her against the walls. According to the applicant, her requests to inform her relatives about her detention, to allow her to have a lawyer and to call for medical assistance were refused. Later on the same day the applicant complained to the Deputy Prosecutor of the Zheleznodorozhnyi District Dvoimennyi A.V. ( заместитель прокурора Железнодорожного района Двойменный А.В. ) who was present in the police station. He suggested to the applicant that she should submit a written complaint about her unlawful arrest. As to ill-treatment, the applicant claims that he insisted that she should not pursue this complaint, otherwise she would not be released from custody. The applicant claims that she handed him a written complaint about her unlawful detention. At about 7 p.m. on the same day the applicant was brought home to Bataysk because the police wanted to conduct a search of her flat. Again she did not let the police into her flat as they had no authorisation to search it. The applicant was then taken back to the Zheleznodorozhnyi District police station where, she alleges, she was again beaten and intimidated. She was placed in a detention cell where she was kept overnight. According to the applicant, no records were made about her arrest and detention between 5 p.m. on 13 February 1999 and 2.30 p.m. on 14   February 1999. On 7 May 1999 the Prosecutor of the Zheleznodorozhnyi District sent a letter to the Zheleznodorozhnyi District Court which stated that no records were available in relation to the arrest, interrogation and detention of the applicant in the Zheleznodorozhnyi District police station on 13 February 1999. On 14 February 1999 at about 2 p.m. the applicant was taken out of her cell and subjected to a personal search. Her flat keys were seized. She was then brought before an officer who did not introduce himself and did not explain why she was there, or her rights. He asked her no questions. The officer told her “five days”. Subsequently the applicant learned that the officer was a judge of Zheleznodorozhnyi District Court of Rostov, Pronchenko I.A. ( судья Железнодорожного районого суда Пронченко И.А. ) and that she was charged with forceful resistance to the police. She was sentenced to five days’ “administrative” detention. Between 1.10 p.m. and 2.55 p.m. on 14   February 1999 the applicant’s flat was searched pursuant to an order issued on the same day and authorised by the Prosecutor of Zheleznodorozhnyi District. At about 5 p.m. on the same day the applicant was taken to a special centre for administrative detention at 1/11 Semashko Street, Rostov-on-Don. On 18 February 1999 the applicant was brought by Major Sakhno from the detention centre to the Zheleznodorozhnyi District police station. The applicant claims that he ordered her to wash the floor in the police station hallway. When she finished washing the floor he released her. On 19 February 1999 the applicant underwent a medical examination. The report certifies that she had bruises on the face and legs, abrasions on the face, neck and legs, and traumatic edema of the soft tissues of the head. On 1 March 1999 the applicant alleges that she was intimidated by an unknown person who urged her to stop complaining about the actions of the police. He made a threat to plant drugs on her. 1.     Complaint to the Prosecutor’s Office and police superiors On 11 March 1999 two complaints on behalf of the applicant were submitted: one to the Chief of the Internal Affairs Department of the Rostov Region and one to the Prosecutor of the Rostov Region. On 30   March 1999 the Deputy Chief of the Internal Affairs Department of the Rostov Region ( Заместитель начальника Главного управления внутренних дел Ростовской области ) informed the applicant that an internal inquiry had been conducted in view of her complaint. No proof of her unlawful detention or ill-treatment had been found. Disciplinary sanctions were, however, imposed on some servicemen of the Zheleznodorozhnyi District police station and the special centre for administrative detention. The names of these persons, or the reasons for imposing sanctions on them, were not given. On 12 April 1999 the applicant was informed by a letter from the Deputy Prosecutor of the Zheleznodorozhnyi District, Dvoimennyi A.V., that no criminal investigation against the accused police officers and servicemen was to be opened. On 9 June 1999 the Deputy Prosecutor of the Rostov City Prosecutor’s Office confirmed the refusal to open a criminal investigation against the accused police officers and servicemen. 2.     Proceedings before the courts (a)     Appeal against the administrative detention On 15 March 1999 the applicant attempted to bring proceedings before the Rostov Regional Court against her “administrative” detention. Her claim concerned the procedure by which the “administrative” detention was imposed. In particular, she asserted that the officer who took the decision to detain her was not introduced to her, did not ask questions, did not inform her of any charge against her, did not explain the purpose of her appearance before him and did not give her a copy of his decision to detain her. On 17 March 1999 the claim was returned to the applicant with a letter signed by Judge Pronchenko (the judge who had imposed the “administrative” detention), who informed her that the law did not provide for an ordinary appeal against a decision to impose an administrative sanction. A decision of this type was subject only to a prosecutor’s extraordinary appeal. The applicant filed a complaint with the Zheleznodorozhnyi District Court of Rostov against the refusal to consider her claim. She complained, inter alia , that her claim was rejected by a letter, not by a decision, which made an ordinary appeal against the rejection impossible. On 25   March 1999 the applicant filed a similar complaint with the Rostov Regional Court. On 26   May 1999 the President of the Rostov Regional Court sent a reply to the applicant. He concluded that, based on the file, the applicant’s detention was lawful and that she had committed an administrative offence of forceful resistance to the police. He found that the “administrative” detention was imposed in accordance with both substantive and procedural law. On 17 July 1999 the applicant filed another complaint with the Rostov Regional Court. She insisted that her complaint against the decision on her detention be considered by way of appeal proceedings, not rejected by letter. On 23 August 1999 the acting President of the Rostov Regional Court explained that no appeal against a decision on “administrative” detention was provided for by the applicable legislation. He stated that consideration of the complaint by the President of the Rostov Regional Court which resulted in the letter of 26   May 1999 constituted the only possible, and sufficient, judicial avenue for the applicant. On 1 October 1999 the applicant attempted to challenge the act of the President of the Rostov Regional Court in the Kirovskiy District Court. She alleged that his refusal to consider her complaint by way of ordinary appeal proceedings violated her right of access to court. On 18 October 1999 Kirovskiy District Court refused to accept the claim. The applicant appealed against the latter decision. On 1   December 1999 the Rostov Regional Court dismissed her appeal. It stated that a district court had no competence to review the acts of the President of the Regional Court. (b)     Proceedings before the Bataysk Town Court On 15   March 1999 the applicant lodged a claim with the Bataysk Town Court of the Rostov Region. She requested that her ill-treatment by the police and her arrest be declared unlawful and she be awarded damages. On 22   December 1999 the claim was dismissed. The judgment established that: (i)   the search of the applicant’s premises was lawful; (ii)   the applicant’s arrest on 13   February 1999 was lawful; (iii)   the applicant’s “administrative” detention between 14-18 February 1999 was lawful; (iv)   the applicant failed to prove ill-treatment by the police. In relation to the events on 13 February 1999, the court found that the police acted on the basis of an investigator’s special request made in the context of criminal proceedings, duly authorised by the prosecutor. In relation to the applicant’s “administrative” detention, the court stated that it was lawful since it was imposed by a judge of Zheleznodorozhnyi District Court. As to the allegations of ill-treatment, the court referred to the prosecutor’s refusal to open a criminal investigation against the alleged perpetrators and to the conclusion of the internal police inquiry that no ill-treatment had been established. The court also concluded that no ill-treatment was proved by the applicant. It dismissed the medical report as irrelevant in the absence of established fault on the part of the police. The applicant appealed. On 23   February 2000 the Rostov Regional Court upheld the earlier findings. The applicant did not receive the full text of the latter decision, despite her requests. (c)     Further proceedings On 15   January 2003, after communication of the case to the respondent Government by the Court, the Prosecutor’s Office of the Zheleznodorozhnyi District instituted a criminal investigation into the applicant’s arrest and her overnight detention and into her allegations of ill-treatment. On 28 February 2003 the Prosecutor of the Rostov Region on his own motion filed a request with the President of the Rostov Regional Court to quash the decision of 14 February 1999 by which a period of five days’ administrative detention was imposed on the applicant. The request was based on the finding that no administrative offence was committed by the applicant as she was in fact resisting an unlawful act of police officers. Furthermore, the detention, which is only to be applied as an exceptional measure, was a disproportionate punishment in the applicant’s case. On 5 March 2003 the President of the Rostov Regional Court granted the request and quashed the decision of 14 February 1999. The President found that the judge who convicted the applicant of an administrative offence did not examine whether the applicant had indeed committed the offence, whether she was guilty of it and did not clarify the facts of the case. He found that the applicant’s acts were wrongly qualified as a forceful resistance to officers maintaining public order, as the police were carrying out an investigation and not safeguarding public order when the applicant resisted. He therefore concluded that no offence was committed by the applicant. He also stated that the officers effecting the applicant’s arrest and her delivery to the police station did not comply with the requirements of Article 240 of the Administrative Code. B.     Relevant domestic law 1.     Forceful resistance The relevant provisions of the Administrative Code ( Кодекс об административных правонарушениях РСФСР ), in force until 1 July 2002, read as follows: Article 165 “Forceful resistance to a lawful order or demand by a police or a voluntary brigade serviceman, ...... shall be punished by a fine of 10 to 15 minimum wages, ..., or by 1 to 2 years’ correction works ..., or if these measures are considered insufficient, by up to 15 days’ imprisonment.” 2.     Interrogation of witnesses Article 155 “A witness shall be called for interrogation by a written notice served on him personally, or in his absence to an adult member of his/her family ... The notice shall contain the name of the person called as a witness, indicate where, before whom, what date and time he is due to appear and the consequences of a failure to appear. A witness may also be summoned by telephone or a cable.” Article 157 “The interrogation of a witness takes place at the place of investigation. An investigator may decide to interrogate a witness at the witness’ location.” 3.     Authorisation of arrest and detention The Constitution of the Russian Federation adopted by referendum on 12   December 1993 provides, in so far as relevant, as follows: Article 22 “1.   Everyone has a right to liberty and personal security. 2.   Arrest, detention and placement in custody shall be effected subject to a court decision. No one may be detained longer than 48 hours before the court decision is taken.” Chapter 19 of the Administrative Code (see above) provided that the police could subject a person to administrative arrest to prevent an administrative offence, to establish a person’s identity, to issue a document certifying that an administrative offence had been committed, if it was necessary and could not be done on the spot, and to ensure effective proceedings or enforcement in administrative cases. Article 242 provided, in particular, that the term of administrative arrest should not exceed 3 hours, except for certain categories of offenders, including those who forcefully resisted the lawful order of the police, who could be detained as long as necessary until their case was considered by a district (town) judge or a police superior. Article   240 set out the requirements of the arrest report. 4.     Appeal against a decision on administrative detention The relevant provisions of the Administrative Code (see above), read as follows: Article 266 “The decision to impose an administrative sanction may be appealed by a person on whom it is imposed, or by a victim. The decision of a district (town) court or judge to impose an administrative sanction is final and not subject to appeal in the administrative proceedings...” Article 274 “The decision of a district (town) judge to impose an administrative sanction under Articles   ..., 165, ..., may be changed or quashed by the same judge following a prosecutor’s extraordinary appeal, or by a president of a superior court, on his own motion.” COMPLAINTS The applicant complains under Article   3 of the Convention about ill-treatment by the police and about the lack of an effective investigation in the present case by the domestic authorities. The applicant complains under Article   5   §   1 of the Convention about her unlawful arrest on 13 February 1999 and detention in the police station until 14   February 1999. The applicant complains under Article   6 of the Convention that she did not have a fair trial in the proceedings leading to the decision dated 14   February 1999 concerning her administrative detention. In particular, she claims that her very right to court has been violated. In addition, the applicant complains that she had no effective domestic remedy at her disposal for her complaints under Articles 3, 5 and 6. THE LAW 1.     The applicant alleges that she was beaten up by the police and that there was no effective investigation by the domestic authorities of her allegations of ill-treatment. She invokes Article   3 which provides as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” The Government submit that on 15   January 2003 the Prosecutor’s Office of the Zheleznodorozhnyi District opened a criminal investigation into the applicant’s allegations, including those of ill-treatment. They consider that it is not possible to comment further on the allegations for the time being. The applicant maintained her complaints. The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. 2.     The applicant complains that her arrest on 13   February 1999 and the overnight detention in the police station violated Article   5   §   1 of the Convention. This Article provides in so far as relevant as follows: “1.     Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a)     the lawful detention of a person after conviction by a competent court; (b)     the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c)     the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ...” The Government reiterate their reference to the criminal investigation instituted on 15   January 2003 and state that they cannot comment on the events of 13-14 February 1999 before the end of the investigation. The applicant maintained her complaints. The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. 3.     The applicant complains that the proceedings in which she had been convicted and sentenced to five days’ “administrative” detention did not comply with the guarantees of Article   6   §   1 of the Convention, which provides as follows: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly ...” The Government claim that the applicant is no longer a victim of the alleged violation since the five days’ sentence was quashed on 5   March 2003 by way of supervisory review. They rely on the court’s finding that the applicant was convicted without due consideration of the facts and that the conviction was contrary to the Administrative Code. They also rely on the fact that the administrative proceedings against the applicant were terminated by the decision of 5   March 2003, which constituted redress for the violation of the applicant’s right to a fair trial. The applicant maintained her complaint. The Court reiterates that a decision or measure favourable to the applicant is not in principle sufficient to deprive the applicant of his or her 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 the 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). The Court recalls that by the time of the supervisory review proceedings the applicant had already served her five days’ sentence as a result of the unlawful order and no compensation was offered by the authorities in this respect. In the present case, even assuming that the Rostov Regional Court’s ruling of 5 March 2003 amounted to an acknowledgement in substance of a violation of Article 6   §   1 of the Convention, it did not award the applicant any compensation. The Court notes that the Government did not suggest that it was for the applicant to take further steps to secure relief in this respect. The Court therefore concludes that the applicant can still claim to be a “victim” within the meaning of Article 34 of the Convention. The Court further notes that, in the light of the domestic courts’ findings in the supervisory review proceedings that the five days’ detention had no basis in domestic law, issues also arise in connection with the substantive grounds of the detention, under Article   5   §   1 of the Convention. The Court considers, in the light of the parties’ submissions, that this part of the application raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this part of application is not manifestly ill-founded within the meaning of Article   35 §   3 of the Convention. No other ground for declaring it inadmissible has been established. 4.     The applicant complains under Article   13 of the Convention that she had no effective remedy against the alleged ill-treatment, or against her unlawful arrest and five days’ detention. Article   13 of the Convention provides as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” The Court recalls that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. Furthermore, the effectiveness of the remedy for the purpose of Article 13 does not depend on the certainty of a favourable outcome (see Vereinigung Demokratischer Soldaten Österreichs and Gubi v. Austria , judgment of 19 December 1994, Series A no. 302, §   55). (i)     Effective remedy against ill-treatment The Court notes that Article   13 complaint is closely linked to the procedural limb of the Article   3 complaint, in relation to which the Government claim that the investigation is currently being conducted. The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. (ii)     Effective remedy against arrest The Court notes that in relation to the complaint about unlawful arrest the applicant could have applied to a court for redress and did so. There is nothing to suggest that that determination did not constitute an effective remedy, or that in the particular circumstances of the present case an appeal to a court was devoid of any chance of success. It follows that this part of the application is manifestly ill-founded within the meaning of Article   35   §   3 and must be rejected pursuant to Article   35   §   4 of the Convention. (iii)     Effective remedy against the “administrative” proceedings It appears from Article   266 of the Administrative Code that the decision by which the five days’ detention was imposed was not subject to any appeal. The Court also notes that the Bataysk Town Court acknowledged that the impugned decision was final and indisputable. The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under Article   13 and Article   5   §   4 of the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. For these reasons, the Court unanimously Declares admissible, without prejudging the merits, the applicant’s complaints about ill-treatment by police; about the absence of an effective investigation into the acts of ill-treatment; about her unlawful arrest and the overnight detention on 13-14 February 1999; about the unlawful “administrative” detention and the unfair proceedings by which it was imposed; and about the absence of effective domestic remedies against the imposition of the “administrative” detention; Declares inadmissible the remainder of the application.   Søren Nielsen   Christos Rozakis Deputy Registrar   President