CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 23 mars 2006

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Rozakis , President ,   Mr   L. Loucaides ,   Mrs   F. Tulkens ,   Mr   P. Lorenzen ,   Mrs   N. Vajić ,   Mrs   S. Botoucharova ,   Mr   A. Kovler, judges ,   and Mr S. Nielsen, Registrar, Having regard to the above application lodged on 4 September 2001, 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, Mr Yevgeniy Vyacheslavovich Kovalev, is a Russian national, who was born in 1973 and lives in Aksay, Rostov Region. He is represented before the Court by Ms K. Kostromina, a lawyer practising in Moscow. The respondent Government are represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights. A.     The circumstances of the case The facts of the case as submitted by the parties, may be summarised as follows. 1.     Undisputed facts On 13 November 2000 the applicant was arrested by three police officers, S, B and L, and taken to the Aksay police station. He was detained on remand. On 16 November 2000 the applicant was charged with taking part in a robbery committed by an organised gang. The applicant denied his participation in any crime. On the same day the Azov District Prosecutor authorised the applicant’s pre-trial detention. The applicant spent nine months in the pre-trial detention facility IZ-61/1 in Rostov. In July 2001 the applicant wrote a letter, apparently a complaint, to the Rostov Regional Prosecutor’s Office and submitted it to the administration of the detention facility for posting. On 13 August 2001 the Rostov Regional Prosecutor’s Office received the applicant’s letter which they forwarded, in a sealed envelope, to the Rostov Regional Court because it was already in charge of the criminal case against the applicant. On 22 August 2001 the Rostov Regional Court began its examination of the criminal charge against the applicant and his four co-accused. At the trial, it was apparently the presiding judge, and not the prosecutor, who presented the charges. The applicant, as before, pleaded not guilty. Three of the co-accused repudiated their earlier statements incriminating the applicant and contended that they were forced to testify against him. The fourth co-accused also withdrew his testimonies against the applicant and said that he had given false evidence because he did not like him. The applicant requested the court to disregard the pre-trial testimonies of his co-accused and said that he had been ill-treated too. The applicant’s counsel asked the applicant to elaborate on his ill-treatment allegations, but the judge dismissed the question as irrelevant to the merits of the charges. The court established that the applicant’s co-accused gave their pre-trial testimonies in the presence of their legal counsels and had never before the trial complained about any pressure. On that basis the court accepted the pre-trial testimonies as evidence. On 30 August 2001 the Rostov Regional Court found the applicant guilty of participation in an organised armed gang and of two armed robberies. It based its finding on cumulative evidence, including the detailed pre-trial testimonies of the applicant’s co-accused and the written statements made by three victims. The applicant was sentenced to eight and a half years’ imprisonment. His four accomplices were convicted as well. On 17 September 2001 the Rostov Chief Prison Directorate of the Ministry of Justice of the Russian Federation informed the applicant that the administration of the detention facility IZ-61/1 had unlawfully delayed his July 2001 letter to the prosecutor’s office by about a month, and that disciplinary proceedings had been taken against those responsible. On 19 February 2002 the applicant’s conviction was upheld by the Supreme Court of the Russian Federation. On unspecified date the applicant seized a court with a civil claim for damages alleging an unlawful arrest and ill-treatment by the police. On 13   March 2002 the Aksay Town Court examined his claim. The applicant was represented by his wife and a local NGO, but the court refused to summon the applicant himself on the grounds that he was serving his prison sentence. The court established that the applicant’s arrest and detention were authorised in accordance with criminal procedure, and their lawfulness should have been challenged in criminal proceedings, either by a separate action or at the trial concerning the determination of the criminal charge. The court found that the applicant had not taken any such steps and held that it had no competence to examine this claim and that in any event it was unsubstantiated. All claims were dismissed as a whole. The applicant appealed on the grounds that the court had not specified on what grounds it had dismissed the claim concerning ill-treatment. He requested an expert examination and a full investigation of the circumstances of his arrest. On 17   April 2002 the Rostov Regional Court dismissed the appeal holding, in particular, that the allegation of ill-treatment was entirely unsubstantiated as the applicant had failed to produce any evidence whatsoever in support of his claim. 2.     Facts in dispute The parties dispute each other’s submissions concerning the ill-treatment alleged by the applicant and his alleged ensuing attempts to lodge a complaint with the prosecutor’s office. (a)     Facts as related by the Government The Government state that the applicant did not complain about ill-treatment by the police while he was in the pre-trial detention. They rely on three official sources: the Department of Interior of the Rostov Region, the Aksay District Prosecutor’s Office and the detention facility IZ-61/1. The Department of Interior claimed that in 2000 they received no complaints from the applicant. Likewise, the prosecutor’s office submitted that they had not received any complaints from him until 13 August 2001. On that day they received a letter which they forwarded, in a sealed envelope, to the court who had already taken charge over the criminal case. As for the detention facility, they submitted that according to their records the applicant sent only three official letters during his pre-trial detention, including the aforementioned letter to the prosecutor’s office, the other two being requests to access his criminal case file. Following the communication of this application to the respondent Government the Internal Security Department of the Ministry of Interior carried out an enquiry into the allegations made in this application, in particular concerning officers S, B and L who took part in the applicant’s arrest. The enquiry did not find any proof that the above officers had abused their official powers. (b)     Facts as related by the applicant The applicant submitted that he had been ill-treated by the police to make him confess to taking part in the armed robberies. He described two occasions of ill-treatment. The first time he was allegedly beaten up at the police station for about ten hours immediately after his arrest. In particular, he alleges that several policemen beat him on the heels with a truncheon, hit him on the head through a pillow and punched him with boxing gloves. The applicant alleged that he had sustained multiple injuries, such as dislocation of the joints and sprains. He also referred to having had severe pain in his heels and kidneys, vertigo, sickness and asthmatic symptoms. Despite that he did not confess. He also claimed that he was refused medical assistance. On the second occasion, three days later, he was allegedly checked out from the police station, blinded with adhesive tape wrapped around his head and taken to the countryside where the police forced him to confess, again unsuccessfully. The applicant claims that he wrote numerous complaints to the prosecutor’s office, but the staff of the detention facility IZ-61/1 stopped all of them. COMPLAINTS The applicant complained under Article 3 of the Convention that he had been ill-treated by the police and that no effective investigation of this complaint had been conducted by the domestic authorities. The applicant complained that his arrest and pre-trial detention was in breach of Article 5 of the Convention. The applicant complained under Article 6 of the Convention that the criminal proceedings against him were unfair. He claimed that the presiding judge, and not the prosecutor, had presented the charges at the hearing, and that the court had accepted evidence which should have been declared inadmissible. The applicant also complained under Article 6 of the Convention that he could not take part in the civil proceedings in person. THE LAW 1.     The applicant complained about beatings by the police and about the authorities’ failure to act in response to his complaints. He invokes Article 3 of the Convention which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” The Government contested the applicant’s allegations of ill-treatment. They referred to the internal security check in the Ministry of Interior which had not found any evidence in support of the applicant’s allegations. They also argued that at the material time the applicant had not complained about abuse by the police to any competent authority. They relied on the information provided by the Department of Interior, the public prosecutor’s office and the detention facility, all of whom had consistently maintained that no complaints had been filed by the applicant. They contended that in fact he had not sent any mail while in detention, apart from two requests to access his case file and one letter to the prosecutor’s office sent in July 2001. The Government also disputed that the applicant had requested the trial court to investigate the alleged acts of ill-treatment. They relied on the trial verbatim records where no mention of such request, or its dismissal, could be found, and stated that the applicant had never challenged the trial records on this point. As for the applicant’s civil action, the Government considered that the court’s decision to dismiss the applicant’s claim was justified because he had failed to produce any evidence in support of his allegations of ill-treatment. The applicant maintained his complaints. He alleged that he had been ill-treated immediately after the arrest and then three days later. He claimed that he had written a number of complaints to the prosecutor’s office, but none of them had been dispatched from the detention centre. He pointed out that the prosecutor’s office had acknowledged the fault of the detention centre in delaying his letter of July 2001 and claimed that this was a proof that his other letters had been seized. The Court reiterates that allegations of ill-treatment must be supported by appropriate evidence. To assess this evidence, the Court has adopted the standard of proof “beyond reasonable doubt”, but has added that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Labita v. Italy [GC], no. 26772/95, § 121, ECHR 2000 ‑ IV). Turning to the circumstances of the present case, the Court observes that, apart from his own statements, the applicant has not produced any conclusive proof in support of his allegations of ill-treatment. The Court notes that, according to the applicant, the medical examination was refused. However, the applicant has not provided the Court with any other evidence, such as witness statements, nor any documents to show that he had actually requested a medical examination. Furthermore, it does not appear that the applicant brought his allegations of ill-treatment to the attention of domestic authorities at the time when they could reasonably be expected to investigate the circumstances in question. His argument that the detention centre blocked any possibility for him to complain is based solely on the fact that one of his letters had indeed been delayed by about one month. However, the applicant has not specified how many other letters he attempted to send, or indicated, at least approximately, the dates of their submission for dispatch. Moreover, even if the applicant believed that he was prevented from corresponding with the prosecutor’s office, it remains unexplained why he did not instruct his retained legal counsel or his family to file a complaint on his behalf. The only letter that the applicant has, beyond doubt, sent to the prosecutor’s office was written at least eight months after the alleged ill-treatment and its content is unknown to the Court. Therefore the materials in the Court’s possession are insufficient to conclude that the authorities had prevented the applicant from filing a complaint about the alleged ill-treatment. Later, the applicant twice brought the matter to the attention of domestic authorities. The first time, it was nine months after the alleged beatings, when he challenged his accomplices’ statements at the trial. However, this was a matter of admissibility of evidence, and not a substantive complaint on which the court was required to make any separate findings. The second time, it was in the civil proceedings when the applicant expressly requested the fact of ill-treatment to be established and to be awarded damages. This took place in 2002, more than a year after the alleged ill-treatment. In this respect the Court recalls that a civil action is not capable, without the benefit of the conclusions of a criminal investigation, of making any findings as to the identity of the perpetrators, and still less to establish their responsibility (see Isayeva and Others v. Russia , nos. 57947/00, 57948/00 and 57949/00, § 149, 24 February 2005). Furthermore, in his claim the applicant did not indicate any evidence or witness on his behalf to enable the court to make an independent assessment of his allegations. Given the time that had elapsed after the alleged ill-treatment, it was virtually impossible for the court to obtain any evidence of its own motion either, therefore it had no choice but to dismiss the claim as unfounded. The Court finds that the applicant failed to submit any evidence to enable it to depart from the findings of the domestic authorities on this point. Accordingly, there is an insufficient evidentiary basis on which to conclude that the applicant, beyond reasonable doubt, was beaten up by police officers, as alleged by him, or that the authorities failed to comply with the procedural obligation under Article 3 to conduct an effective investigation into his allegations. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. 2.     The applicant complained about the courts’ refusal to summon him from prison to take part in the examination of his claim against the police that took place on 13 March 2002. He invokes Article 6 § 1 which provides in so far as relevant as follows:   “In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public ... hearing ... by [a] ... tribunal...” The Government submitted that the applicant had not been summoned to the proceedings at issue because he was in prison and because he had been duly represented before the court. They also stressed that his claim had been rejected for procedural, and not for substantive reasons, in particular because this claim was not eligible to be examined in civil proceedings. In such circumstances the authorities reasonably considered the applicant’s personal presence unnecessary. The applicant contested the Government’s argument and claimed that he had been deprived of an opportunity to state his case before a court in person. The Court considers, in the light of the parties’ submissions, that this 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 Court has examined the remainder of the applicant’s complaints as submitted by him. However, having regard to all material in its possession, the Court finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and   4 of the Convention. For these reasons, the Court unanimously Declares admissible, without prejudging the merits, the applicant’s complaint concerning his absence in the civil proceedings. Declares the remainder of the application inadmissible.   Søren Nielsen   Christos Rozakis   Registrar   President