CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 5 juin 2007

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Lorenzen , President ,   Mr   K. Jungwiert ,   Mr   V. Butkevych ,   Mrs   M. Tsatsa-Nikolovska ,   Mr   A. Kovler ,   Mr   J. Borrego Borrego ,   Mr   M. Villiger, judges , and Mrs C. Westerdiek , Section Registrar , Having regard to the above application lodged on 14 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, Mr Leonid Nikolayevich Samoylov, is a Russian national who was born in 1963 and lives in Zelenograd. He is represented before the Court by Ms K. Kostromina, a lawyer practising in Moscow. The Russian Government (“the Government”) were 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.     Alleged ill-treatment by the police On 5 February 1999 three police officers from the Metro police at Leningradskiy railway station in Moscow, L., S. and I., arrested the applicant and another person, R., on suspicion of burglary. They took them to the Komsomolskaya Metro police station for questioning and urged the applicant to confess. The applicant refused and asked to be assigned a lawyer. Angry about this request, the policemen punched the applicant in the upper body and the head. Later, the policemen took the applicant to a special Metro police station for further questioning. According to the applicant, as soon as the interrogation had begun, the policemen beat him to make him sign a confession they had prepared. The applicant refused to sign. Angry about this refusal, the policemen cuffed the applicant’s hands behind his back, dropped him on the floor, and applied electricity to his neck, kidneys, liver and private parts. They kicked the applicant in the stomach, put him in a chair, and beat his head with a document file until he fainted. Fifteen minutes later the policemen told the applicant that they would hand him over to officers from the Sokol district police station because the burglary had been committed in that district. The officers from the Sokol district police station questioned the applicant and placed him in a temporary detention unit. Three days later, the applicant was transferred to remand prison SIZO–48/5. On the applicant’s admission to the prison, the doctor on duty observed injuries on his body. He sent the applicant to a first-aid post to record the injuries. On 10 February 1999 the first-aid post recorded bruises on the applicant’s left ear, right forefinger, right shoulder and left shin. On 22   February 1999 the prison administration asked the public prosecutor of the Golovinskiy District to investigate the applicant’s allegation of ill-treatment. The prosecutor referred the request to the public prosecutor of the Metro because it was Metro police officers who had allegedly ill-treated the applicant. 2.     Trial and the first cycle of the investigation into ill-treatment The applicant’s criminal case was submitted for trial in the Golovinskiy District Court. At the trial, the court questioned as a witness L., the policeman who had arrested the applicant, who stated that he had not used physical coercion against the applicant. The applicant recognised L. as the man who had beaten him. The court asked the public prosecutor of the Metro about the results of the inquiry ( прокурорская проверка ) into the alleged ill-treatment. On 9 June 1999 the Internal Investigations Department of the Moscow police informed the court that the applicant could have been injured when being transported to the remand prison. On 5 October 1999 the court convicted the applicant and R. of burglary and sentenced them to four years and four months’ imprisonment. The court found the applicant’s allegation of ill-treatment unsubstantiated, stating: “The use of physical coercion [against the applicant and R.] by the policemen has not been corroborated by the results of the inquiry conducted.” On 15 December 1999 the Moscow City Court upheld the applicant’s conviction on appeal. 3.     Second cycle of the investigation into ill-treatment On 26 June 1999 the public prosecutor of the Metro refused to institute criminal proceedings against the alleged perpetrators on the ground that there was no indication that a crime had been committed. On 31   October   1999 the applicant asked the Moscow public prosecutor to quash the decision of 26   June 1999. On 17 January 2000 the Moscow public prosecutor quashed the decision of 26 June 1999 rendered by the public prosecutor of the Metro and referred the case back for further investigation. 4.     Third cycle of the investigation into ill-treatment On 24 January 2000 the public prosecutor of the Metro refused to open criminal proceedings against the policemen for the second time. On 28 January 2004 a Moscow deputy public prosecutor quashed the decision of 24 January 2000, finding that it was superficial. He noted, in particular, that no medical examination had been carried out to establish the method by which the injuries had been inflicted and their gravity and, furthermore, that O. and D., persons who had been detained simultaneously with the applicant and had sustained similar injuries, had not been questioned. He referred the case back for further investigation. 5.     Fourth cycle of the investigation into ill-treatment On 5 March 2004 the deputy public prosecutor of the Metro refused to institute criminal proceedings against the policemen for the third time on the ground that there was no indication that a crime had been committed. In the decision it was noted that the policemen L., S. and I., who had arrested the applicant, had stated that they had not used physical coercion against him. Three other policemen, K., Z. and J., who had been on duty at the police station on 5 and 6 February 1999, were also questioned. K. stated that during his duty hours the applicant had not been brought to the police station. Z. and J. submitted that on 5 February 1999 at around 2 p.m. two persons had been brought to the police station; however, no physical force had been used against them and no procedural steps had been taken that day. O. and D., the persons who had been detained simultaneously with the applicant, could not be questioned because they did not reside in Moscow any more. As regards the injuries noted in the medical report of 10   February   1999, it was impossible to determine when and in what circumstances they had been inflicted. B.     Relevant domestic law Before 1 July 2002, criminal proceedings in Russia were governed by the Code of Criminal Procedure of 1960. Under Article 113 of the Code, a refusal to open criminal proceedings could be appealed against to a prosecutor or a court. Under Article 220, a refusal by the prosecutor could be appealed against to a higher prosecutor. COMPLAINTS   The applicant complained under Articles   3 and 13 of the Convention of his ill-treatment by the police and the lack of an effective investigation into the matter. THE LAW The applicant complained that he had been ill-treated by the police and that the investigation into the matter had not been effective. He relied on Article 3 of the Convention, in conjunction with Article 13, which read as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 13 “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.” In their first set of observations the Government accepted the applicant’s account of the facts. They noted, however, that the investigation had been resumed and was pending, and that it was therefore too early to assess the merits of the complaint. In their second set of observations the Government claimed that the applicant had failed to exhaust domestic remedies because he had not appealed to a court against the decision of 26   June 1999 not to institute criminal proceedings, and had not appealed either to a court or to a higher prosecutor against the decision of 5 March 2000 not to institute criminal proceedings. They further submitted that in the light of the decision of 5   March 2000, the complaint was also manifestly ill-founded. In his first set of observations the applicant submitted that in the course of the investigation into ill-treatment no expert medical examination had been carried out and persons detained simultaneously with him had not been questioned, which was not disputed by the Government. The fact that the investigation had been pending for over three years by the time when the applicant had submitted his first set of observations did not mean that the complaint was premature but proved that the investigation had been inadequate. As regards any subsequent reviews of the investigation results, they were bound to grind to a halt as it would be impossible to rectify the flaws in the investigation four years after the event. The applicant contended that the investigation was clearly ineffective and that his rights under Articles 3 and 13 had been violated. In his second set of observations the applicant reaffirmed the arguments set out above. The Court reiterates that Article 3 requires the authorities to investigate allegations of ill-treatment when they are “arguable” and “raise a reasonable suspicion” (see Assenov and Others v.   Bulgaria , judgment of 28   October 1998, Reports of Judgments and Decisions 1998 ‑ VIII, p.   3290, §§   101-102). It therefore considers that the Government’s objection as to the non-exhaustion of domestic remedies is closely linked to the merits of the applicant’s complaint about the domestic authorities’ failure to comply with their procedural obligations under Article 3 of the Convention. Thus, the Court finds it necessary to join the Government’s objection to the merits of the case. The Court considers, in the light of the parties’ submissions, that the application raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It therefore concludes 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 the application admissible, without prejudging the merits of the case.   Claudia Westerdiek   Peer Lorenzen   Registrar   President