CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 2 octobre 2008

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RUSSIA   (Application no. 1748/02)               JUDGMENT       STRASBOURG   2 October 2008     FINAL   06/04/2009       This judgment may be subject to editorial revision. In the case of Belousov v. Russia, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Peer Lorenzen, President,   Rait Maruste,   Volodymyr Butkevych,   Anatoly Kovler,   Mark Villiger,   Mirjana Lazarova Trajkovska,   Zdravka Kalaydjieva, judges, and Claudia Westerdiek, Section Registrar , Having deliberated in private on 9 September 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 1748/02) 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 Ivan Aleksandrovich Belousov (“the applicant”), on 24 July 2000. 2.     The applicant was represented by Ms M. Samorodkina, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr P. Laptev and subsequently by Mrs V. Milinchuk, Representatives of the Russian Federation at the European Court of Human Rights. 3 .     On 13 February 2006 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. 4.     The Government objected to the joint examination of the admissibility and merits of the application. Having examined the Government’s objection, the Court dismissed it. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1973 and lives in the town of Yuzhno ‑ Sakhalinsk in the Sakhalin region. 6.     In December 1999 the applicant arrived in Moscow. On 3   December 1999 he was examined by the Moscow medical commission, which found him to be in good health and fit to drive a car. A.     The events of 5 December 1999 and the applicant’s state of health 7.     On 5 December 1999 the applicant gave an interview to a national TV station, NTV, which was running a story on a dispute between private holders of government bonds and the Ministry of Finance. During the interview the applicant, the head of a group of private bondholders, accused the Ministry of initiating a vendetta against him and ordering assaults on bondholders to pressurise them into withdrawing their lawsuits against the Ministry. The interview was aired on NTV’s weekly political analysis show, Itogi . 8.     On the same day police officers stopped the applicant and his brother in the street and asked them to show identification documents. The Government alleged that the police officers had acted on information about wanted criminals who looked remarkably similar to the applicant and his brother. According to the Government, the applicant and his brother were not in possession of any papers which could have proved their identity and they were taken to Koptevo police station in Moscow ( ОВД «Коптево» г.   Москвы ) owing to their “refusal to comply with the orders of the police officers and use of obscene language in public”. According to the applicant, he and his brother disclosed their identity, his brother presenting a military ID card and the applicant showing a work pass. 9.     At the station a police officer, Kh., drew up a note addressed to the head of the Koptevo police department. The note read as follows: “[I] am writing to inform you that on 5 December 1999, at 1.45 p.m., Mr Belousov was brought to the police station together with Mr V. [NB: the police officer]; at the address ..., following several requests to present documents proving his identity, [Mr   Belousov] refused to show them and started swearing at us in the presence of private individuals, using obscene language and at the same time repeating that it would cost us five thousand roubles; the two men refused to follow us to Koptevo police station. The identity check was prompted by telephone message no. 12316.” 10.     According to the applicant, he was severely beaten in the police station by a group of allegedly drunk police officers. After the beatings he was moved to a cell. Several hours later he was brought to a room and forced to strip to the waist. He placed his clothes in a bag and was forced to lift the bag, which weighed approximately four kilograms, and to put it down. He had to perform this “exercise” over and over again. The applicant alleged that the task had been extremely difficult for him, as on 6 October 1999 he had undergone surgery and had been prohibited from lifting weights heavier than a kilogram. The applicant lost consciousness and was taken to the Botkin clinical hospital. 11.     The Government, relying on information provided by the Prosecutor General’s Office, confirmed the fact that the applicant had sustained injuries. 12 .     In the hospital the applicant was examined by a neurosurgeon, a neuropathologist, a urologist and an oculist. Medical report no. 29314 was drawn up. The report indicated that the applicant had been admitted to the hospital at 6.45 p.m. on 5 December 1999 and that he had been diagnosed with “an injury to the front abdominal wall, bruises on the forehead and left hand, an injury to the kidneys, a craniocerebral injury and concussion”. 13 .     The applicant stayed in the hospital until 10 December 1999. According to medical certificates nos. 081114, 066415 and 091922 issued on 10 and 21 December 1999 and 4 February 2000 respectively, the applicant was on sick leave until 10 February 2000 and underwent treatment at home. 14 .     On 10 February 2000 the applicant was examined by an occupational medical expert panel ( врачебно-трудовая экспертная комиссия) and recognised as physically disabled. Medical certificate no. 163147 issued by the panel indicated that the applicant had “a second-degree disability”. B.     Investigation into the applicant’s complaints 15 .     The applicant’s mother complained to the Koptevo district prosecutor’s office that on 5   December 1999 the applicant had been unlawfully arrested and beaten up. 16.     On 14 December 1999 the Koptevo district deputy prosecutor sent a letter to the applicant’s mother informing her that criminal proceedings had been instituted against the police officers at Koptevo police station. 17 .     On 14 March 2000 an investigator from the Koptevo district prosecutor’s office closed the criminal proceedings, finding that there was no case of ill-treatment to answer. The relevant part of the decision read as follows: “In the course of the investigation it was established that on 14 December 1999, at 1.45 p.m., Kh. and V., on-duty officers from the Koptevo district police department, stopped two persons near house no. ... who resembled persons wanted in connection with telephone message no. 12316. The persons concerned refused to present identity documents and were brought to Koptevo police station for an identity check. At the station one of them identified himself as Mr Dmitriy Aleksandrovich Belousov, a third-year student at a military academy; the other introduced himself as Mr   Aleksandr Aleksandrovich Konstantinov. Following a check though the Central Data System the identity of Mr D.A. Belousov was confirmed, and at 4 p.m. he was handed over to a representative of the military commander’s office. The second person (Mr I.A. Belousov, as it was established later) was placed in a cell for administrative arrestees; later he felt sick and an ambulance was called for him. At 5.45 p.m. he was handed over to an emergency team which took him to the Botkin clinical hospital. According to a statement by [the applicant], on 5 December 1999 he and his brother Dmitriy were on their way to Koptevo market. At approximately 12.10 p.m. a police officer, wearing no badge of rank or insignia, stopped them and asked them to show some identity documents. [The applicant] showed his “Lukoil-City” company work pass, and [his brother] showed his military ID card. At that moment another police officer, wearing badge no. 4461, approached them and pushed [the applicant]; [the latter] screamed and the police officer then twisted his arm. Consequently [the applicant] asked to be taken to a police station for an explanation. An on-duty patrol which had arrived at the scene took [the applicant] and [his brother] to Koptevo district police station. At the police station [the applicant] went into the lobby to smoke a cigarette. An on-duty sergeant, wearing badge no. 4491, said that arrestees could not smoke there; [the applicant] responded that he had not been arrested, and the sergeant then called a captain who was standing on the steps of the police station. The captain started hitting [the applicant]; when, responding to [the applicant’s] screams, [his brother] ran from the duty room, the captain hit [his brother] with a machine gun and dragged him back to the duty room. The sergeant wearing badge no. 4491 and another sergeant, wearing badge no. 4488, continued beating [the applicant] up. Then [the applicant] crawled to the duty room and asked the police officers who were there to call an ambulance. [The applicant] and [his brother] were placed in a cell for administrative arrestees; the police officers dismissed all their requests to place a call to their house or to call an ambulance. During his detention at the station [the applicant] was twice submitted to a bodily search without any record being taken ... At 5.20 p.m. a major from the military academy arrived to pick up [his brother]. Subsequently a district police officer arrived at the station and, after forcing [the applicant] to strip to the waist, he and the captain present at the station made [the applicant] lift his clothes and move them from one place to another, following which [the applicant] lost consciousness. [The applicant] regained consciousness in a room where it was extremely hot; the police officers took him to a shower room where an officer on duty provided him with medical assistance. From that time on [the applicant] was almost unconscious until his transfer to the surgical wing of the hospital. An ambulance was called for him and subsequently [the applicant] was brought to the Botkin clinical hospital. [The applicant’s brother], who was questioned as a witness, confirmed [the applicant’s] statements in general, but also stated that two police officers had carried [the applicant] from the lobby. When [the applicant’s brother] was leaving the station, [the applicant] had not had any injuries to his head and hands. According to a report by the Koptevo district police department, badge no. 4461 is assigned to Mr P., badge no. 4488 is attributed to Mr V. and badge no. 4491 is assigned to Mr Kh. During an identification parade in which the police officer wearing badge no. 4491 (Mr Kh.) took part, [the applicant] identified him and noted that the police officer in question had not beaten him up but that he had arrested him; [that statement] is corroborated by other police officers’ statements. According to a statement by the police officer, Mr Kh., he and Mr V. were on duty near Koptevo market on 5 December 1999. At approximately 1.40   p.m. they noticed two men who looked similar to criminals wanted in connection with telephone message no. 12316. In response to a request for identity documents, a man ([the applicant], as it was subsequently established) started screaming obscenities at the police officers. The two men refused to show identity documents. In response to the officers’ request that they go to Koptevo police station, [the applicant] said that he would not follow the officers and that he would not speak to a police officer below the rank of major; he also demanded that they call a car. A group on patrol was called to the scene to bring the two men to the police station. Physical force was not used against the two men. Mr Kh.’s statements are fully corroborated by a statement from Mr V. Mr D., who was questioned as a witness, stated that on 5 December 1999, in response to a call from an on-duty officer he, as a member of a group on patrol, together with Mr L. and Mr K., had arrived to render assistance to the on-duty officers. Two apprehended persons were handed over to them; the patrol took them to Koptevo police station. They did not use physical force against the two men. Mr D.’s statements are fully corroborated by statements from Mr L. and Mr K. Mr Do., an officer on duty at Koptevo police station, who was questioned as a witness, stated that on 5 December 1999 two apprehended persons had been brought to the duty unit of Koptevo police station. One of the arrestees introduced himself as Mr Dmitriy Aleksandrovich Belousov, a student at the military academy, and showed his military ID card...; the other person introduced himself as Mr Aleksandr Alekseyevich Konstantinov and did not have any documents on him. Following a check through ... databases which produced a negative response, [the applicant] was asked to state his real name. Subsequently [the applicant] attempted to leave the station and started smoking. An officer on duty, Mr P., made a remark, following which [the applicant] fell to the floor and started screaming that he was being beaten up. When [Mr Do.] asked him what was going on, [the applicant] said that he had undergone surgery and showed scars on his stomach. The arrestee was reprimanded and placed behind bars. Subsequently [the applicant] continued behaving provocatively, used obscene language, threatened the police officers and tore up roubles and dollars. At 5.30 p.m. he complained that he did not feel well and emergency doctors were called, who transferred him to the Botkin clinical hospital. The police officers behaved properly towards [the applicant]; no physical force was used. Mr Do.’s statements were confirmed by statements from police officers Mr R., Mr   P., Mr Ka. and Mr S. According to the statements given by a witness, Mr F., on 5 December he and a group of emergency doctors arrived at Koptevo police station. A man was sitting in the station behind bars, with his hand on his stomach. He complained of pain in his stomach. During conversation he stated that he was disabled and that he had recently undergone surgery during which a part of his stomach had been removed; he began showing the scars on his stomach. No visible injuries were discovered on [the applicant]. The police officers behaved properly towards [the applicant]. The patient was taken to the Botkin clinical hospital. Mr Vu., an emergency team medical assistant, who was questioned as a witness, testified that on 5 December 1999 he and the emergency team had arrived at Koptevo police station. A man (the applicant, as was later established) was sitting on a couch behind bars with his hand on his stomach. [The applicant] said that he had been beaten up by the police. Other arrestees held at the station said that [the applicant] was lying. In the car [the applicant] talked, saying that he had undergone surgery. He stated that when he had been approached by police officers in the street and had been asked to show some identity documents he had used obscene language. Ms S., who was questioned as a witness, stated that on 5 December 1999 she had been in a room for administrative arrestees. Three more persons were being held there; one of them ([the applicant], as it transpired later) behaved provocatively, screaming and threatening the police officers. The police officers behaved properly towards all the arrested persons; they did not use physical force. During an additional interview [the applicant] stated that a captain had begun hitting him in the lobby. At first [the captain] had hit him with his right hand on the upper part of the left shoulder; after that blow [the applicant] slipped down by the wall and fell near a rubbish bin. Then the captain kicked [the applicant] twice: once in the stomach and once in the back near the kidneys. The first kick in the stomach was particularly hard. After that the sergeants approached [the applicant] and hit him approximately six times in the stomach and back. The applicant then crawled into the duty room where he was hit several times in the buttocks... According to a report issued in the Botkin clinical hospital [the applicant] had an injury to the abdominal wall, an injury to the right kidney, bruises on the forehead and left hand, a craniocerebral injury and concussion; his state of health was satisfactory. Following ultrasound examinations of the abdominal cavity and kidneys no pathology was detected. A forensic medical examination of [the applicant] was performed in the case. According to the expert report, [the applicant] had sustained concussion and an injury to the forehead, which constituted elements of a single trauma and belonged to the category of injuries causing mild damage to health, that is, a short-term deterioration in health lasting less than three weeks... The diagnosis of “an injury to a kidney” indicated in the medical documents was not confirmed by objective clinical data and the results of the special examinations... The diagnosis “traumatic encephalopathy” indicated in the medical documents could not be examined by the expert, because there was insufficient objective data for analysis... At present [the applicant is suffering] from psycho-vegetative syndrome and depression, and needs psychiatric treatment. There is no mention of an injury to the post-surgical sutures in the medical documents presented for expert examination. Differences in the scar tissue along the line of the postsurgical sutures do not exclude a possible partial opening of the sutures in the upper part. Taking into account the fact that the arguments raised by [the applicant] were not objectively confirmed in the course of the pre-trial investigation ..., [the investigator] orders the closure of the criminal proceedings instituted pursuant to Article 286 § 3 (a) of the Criminal Code of the Russian Federation...” 18 .     The applicant complained to the Moscow city prosecutor and the Koptevo District Court of Moscow that the criminal proceedings against the policemen had been closed. 19 .     According to the Government, the decision of 14   March 2000 was quashed on 24   March 2000 by a higher-ranking prosecutor and the case was remitted for additional examination. No copy of that decision was submitted to the Court. 20 .     On 27 April 2000 an investigator from the Koptevo district prosecutor’s office again discontinued the criminal proceedings, finding that there was no case of ill-treatment to answer. The decision of 27 April 2000 was identical in its wording to the decision of 14   March 2000, save for two additional paragraphs in which the investigator recounted the testimonies of two witnesses, Mr Ch. and Mr Ku., who had been detained at the police station together with the applicant. Both witnesses stated that they had not seen the alleged beatings and that the applicant had behaved “provocatively”. According to the applicant, the decision of 27 April 2000 was not served on him. 21.     In the meantime, on 18 April 2000, the Koptevo District Court of Moscow disallowed the applicant’s complaint against the decision of 14   March 2000. The District Court held as follows: “The plaintiff challenges the decision issued in criminal case no. 268869. A complaint concerning a decision issued in the course of criminal proceedings cannot be examined in civil court proceedings. Complaints concerning actions of the prosecution authorities cannot be examined by courts of general jurisdiction, as special laws exist relating to the prosecution”. The Government, relying on a report issued by the President of the Koptevo District Court in March 2006, submitted that the District Court had refused to examine the applicant’s complaint because the decision of 14   March 2000 had been quashed by a prosecutor and the investigation had been reopened. 22.     On 12 May 2000 the applicant received a copy of the decision of 18   April 2000. The applicant’s representative asked the District Court to restore the time-limit for lodging an appeal against that decision. A copy of the statement of appeal was attached to the request. No response followed. On 27 November 2001 the applicant’s representative complained to the President of the Koptevo District Court that her request had not been examined. The stamp on the letter of 27   November 2001 shows that the District Court received the letter the same day. The applicant did not receive any response. 23 .     On 20 March 2006 the Moscow city deputy prosecutor quashed the decision of 27 April 2000 and reopened the investigation into the applicant’s ill-treatment complaint, finding as follows: “The decision [of 27 April 2000] on the closing of a criminal case was issued unlawfully and without any grounds and should be quashed, because in this case it is necessary to question [the applicant’s mother]; to identify and question all the individuals detained in the cell for administrative arrestees when [the applicant] and [his brother] were at the police station; to question further [the applicant’s brother] about his and [the applicant’s] injuries and about material evidence showing that those injuries were sustained; to question further the emergency doctors who arrived at the police station and took [the applicant] to the Botkin clinical hospital in Moscow about the visible injuries; to question thoroughly the doctor who performed the initial examination of [the applicant] in the Botkin hospital; to organise, if necessary, confrontation interviews between the doctors; to carry out a legal evaluation of the [the applicant’s] injuries discovered during the forensic medical examination (concussion, an injury to the forehead, an injury to the left hand and an injury to the right shoulder) and to perform other investigative actions aimed at establishing the truth in the case.” 24 .     On 29 October 2006 an investigator from the Koptevo district prosecutor’s office discontinued the criminal proceedings against the police officers, concluding that no criminal conduct had occurred (Article 24 § 2 of the Code of Criminal Procedure). The investigator copied the wording of the decision of 27 April 2000, merely adding that the forensic medical examination had established that the applicant’s injuries could have been caused by blows administered with a blunt firm object, possibly on 5   December 1999. He also included additional statements by the two witnesses Ms S. and Mr Ku., who had been unable to recall further details of their stay at the police station in December 1999 owing to the length of time since the events, and had merely confirmed their statements given to the investigator in 2000. The investigator did not question the applicant’s mother and brother because he could not establish their place of residence. He was also unable to identify all the individuals who had been detained at the police station together with the applicant, because the registration logs bearing the names of persons detained at Koptevo police station had been destroyed. 25.     On 19 January 2007 the Moscow city deputy prosecutor quashed the decision of 29 October 2006, reopened the investigation into the applicant’s ill-treatment complaints and ordered that investigators should “take procedural decisions concerning the fact that injuries were inflicted on [the applicant], question [police officers] Mr Sh. and Mr V. and take other investigative actions necessary in the course of the investigation”. It appears that the proceedings are now pending. II.     RELEVANT DOMESTIC LAW A.     Investigation of criminal offences 26 .     The RSFSR Code of Criminal Procedure (in force until 1 July 2002, “the CCrP”) established that a criminal investigation could be initiated by an investigator on a complaint by an individual or on the investigative authorities’ own initiative, where there were reasons to believe that a crime had been committed (Articles 108 and 125). A prosecutor was responsible for overall supervision of the investigation (Articles 210 and 211). He could order specific investigative actions, transfer the case from one investigator to another or order an additional investigation. If there were no grounds to initiate or continue a criminal investigation, the prosecutor or investigator issued a reasoned decision to that effect which had to be notified to the interested party. The decision was amenable to appeal to a higher prosecutor or to a court of general jurisdiction (Articles 113 and 209). 27.     On 1 July 2002 the old Code was replaced by the Code of Criminal Procedure of the Russian Federation (“the new CCP”).     Article 125 of the new CCP provides for judicial review of decisions by investigators and prosecutors that might infringe the constitutional rights of participants in proceedings or prevent access to a court. B.     Administrative arrest 28 .     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 subject to a court decision. No one may be detained longer than 48 hours before the court decision is taken.” Section 239 of the Administrative Code (in force until 1 July 2002) provided that the police could subject a person to an 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 the enforcement of administrative sanctions. Section 242 provided, in particular, that the term of administrative arrest should not exceed three hours, except for certain categories of offenders including those who had committed a minor disorderly act, who could be detained as long as necessary until their case was considered by a district (town) judge or a high-ranking police officer. Section   240 set out the requirements with regard to arrest reports. By virtue of section 240 an arrest report was to be signed by the official enforcing the arrest and the arrestee. Section 246 of the Administrative Code provided for appeal against administrative arrest to a prosecutor or a high-ranking police officer. C.     Definition of a minor disorderly act 29.     Section 158 of the Administrative Code (see above) established that a minor disorderly act, that is, use of offensive language in public, harassment and other similar acts which disturbed the public order and the peace of individuals, was punishable by up to fifteen days’ administrative arrest. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 30.     The applicant complained that on 5 December 1999 he had been subjected to treatment incompatible with Article 3 of the Convention and that the authorities had not carried out an effective investigation into those events, amounting to a breach of Article 13 of the Convention. The Court will examine this complaint from the standpoint of the State’s negative and positive obligations flowing from Article 3, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A.     Submissions by the parties 31.     The Government confirmed that injuries had been caused to the applicant. As a consequence, the criminal proceedings against the police officers had been reopened on 20 March 2006 in view of the necessity of performing a number of additional investigative actions significant for the legal evaluation of the police officers’ conduct. The Government further noted that although it was found that injuries had been inflicted on the applicant, it was impossible to conclude that the applicant’s rights guaranteed under Article 3 of the Convention had been violated as a result of the treatment sustained at the hands of the police officers, so long as all the circumstances surrounding the crime had not been investigated. 32.     The Government also argued that the applicant had not exhausted the available domestic remedies. Their assertion was based on two grounds. Firstly, the applicant had not appealed against the decision of 14 March 2000 to a higher-ranking prosecutor. Nor had he made use of the judicial avenue of exhaustion, as his complaint to the Koptevo District Court against that decision had been disallowed. Secondly, the investigation into the events of 5 December 1999 was still being conducted and no final decision had yet been taken at the domestic level. Therefore, his complaint was premature. 33.     The applicant stood by his description of the events of 5   December 1999. He noted that the results of the medical examination conducted on 3   December 1999 and his interview to the TV station on 5 December 1999 could serve as evidence that he had been in good health before his unfortunate encounter with the police. Furthermore, prior to that incident he had not been disabled, nor had he informed the emergency doctors that he was disabled, despite the Government’s assertion to the contrary. He pointed out that although the Government accepted that he had been injured at the police station, they had not confirmed that the treatment he had sustained was contrary to the guarantees of Article 3 of the Convention. Furthermore, they had not commented on the effectiveness of the investigation into the events in question. 34.     The applicant insisted that the investigation had been ineffective. Witnesses, including his mother and staff at the TV station, had not been questioned. The forensic medical examination to which the investigators referred in their decisions had been performed three months after the incident. By that time the applicant had already completed his treatment at the Botkin hospital and had undergone treatment at home and in another hospital. Furthermore, he had never been given a copy of the expert report and had not been provided with an opportunity of putting questions to the expert. The applicant stressed that he had remembered the badge numbers of the police officers involved in the incident. However, certain police officers had not been questioned and had not taken part in an identification parade, and he had not been given an opportunity of confronting them. The applicant noted that despite the fact that the police officer, Mr Do., had advanced his own version of events, the investigators had never examined that version. In the applicant’s opinion, the fact that the proceedings had once again been reopened in 2006 and were still pending was proof in itself of the ineffectiveness of the investigation. B.     The Court’s assessment 1.     Admissibility (a)     Non-exhaustion issue (i)     Failure to appeal against the decisions of 14 March and 27 April 2000 35.     The Court notes the Government’s argument that the applicant did not exhaust domestic remedies as he failed to appeal against the investigator’s decision of 14 March 2000 to a higher-ranking prosecutor or a court. In this connection the Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. Article   35   § 1 also requires that complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance, and in compliance with the formal requirements laid down in domestic law, but not that recourse should be had to remedies which are inadequate or ineffective (see Aksoy v.   Turkey , judgment of 18   December 1996, Reports of Judgments and Decisions 1996 ‑ VI, pp. 2275-76, §§   51-52, and Akdıvar and Others v.   Turkey , judgment of 16   September   1996, Reports 1996-IV, p. 1210, §§   65-67). 36 .     The applicant’s allegations of ill-treatment were examined by the investigator, who in a decision of 14 March 2000 decided to discontinue the criminal proceedings. Under Article 209 of the RSFSR Code of Criminal Procedure, which was in force at the material time, that decision was amenable to appeal to a higher prosecutor or a court of general jurisdiction (see paragraph 26 above). The Government argued that the applicant had not made use of either avenue of exhaustion. In this connection, the Court reiterates the applicant’s assertion (see paragraph 18 above) and the Government’s further submission that on 24   March 2000 a higher-ranking prosecutor quashed the decision of 14   March 2000 and reopened the investigation (see paragraph 19 above). 37 .     As regards the Government’s argument that the applicant at the same time did not avail himself of an alternative judicial remedy, the Court reiterates that where there is a choice of remedies open to an applicant, Article 35 must be applied to reflect the practical realities of the applicant’s position in order to ensure the effective protection of the rights and freedoms guaranteed by the Convention (see Hilal v. the United Kingdom (dec.), no.   45276/99, 8 February 2000; as confirmed in Ivan Vasilev v. Bulgaria , no. 48130/99, §   56, 12 April 2007 and Trykhlib v. Ukraine , no.   58312/00, §   38, 20 September 2005). The Court notes the Government’s submission that the Koptevo District Court refused to examine the applicant’s complaint precisely on the ground that the decision of 14 March 2000 had already been quashed. In such circumstances, the Court does not consider that the applicant’s decision to pursue the possibility of a complaint to a higher-ranking prosecutor was unreasonable or incapable of furnishing him with a remedy. The Court is also mindful of the fact that the Government did not argue that an appeal against the District Court’s decision of 18 April 2000 would have been any more successful or would have been decided on the basis of any other issues. 38.     The Government further argued that the applicant had also not appealed to a court against the decision of 27 April 2000 by which the criminal proceedings against the police officers were once again discontinued. In this connection the Court reiterates that the rule of exhaustion of domestic remedies must be applied with some degree of flexibility and without excessive formalism. The Court has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; for the purposes of reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual case. This means, in particular, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting State concerned but also of the general context in which they operate, as well as the personal circumstances of the applicant (see Akdivar and Others , cited above, p. 1211, §   69, and Aksoy , cited above, p.   2276, §§ 53-54). 39.     The Court notes the Government’s argument that the applicant could have lodged a complaint before a court seeking annulment of the decision of 27 April 2000 and the reopening of the investigation. It observes that the Government cited the decision of 27 April 2000 as a precondition for the applicant’s complaint before a court. However, the applicant was not notified of the decision of 27   April 2000 and no copy of that decision was served on him. This fact was not disputed by the Government. 40 .     In the Court’s view, against this background the applicant could not have been expected to apply to a court. Indeed, in a situation where the applicant was unaware of the decision of 27 April 2000 and did not have a copy of it, he would not have been able to argue his case before a court or even state the reasons for the action in order to pass the admissibility stage. In other words, in the circumstances of the present case, the applicant would have had no realistic opportunity of applying effectively to a court (see Kantyrev v. Russia , no.   37213/02, §   43, 21   June 2007).     In the light of the foregoing, the Court considers that it has not been established with sufficient certainty that the remedy advanced by the Government could have been effective. 41.     Having regard to the findings in paragraphs 36, 37 and 40, the Court dismisses this part of the Government’s objection as to the applicant’s failure to exhaust domestic remedies.   (ii)     Pending criminal proceedings against the police officers 42.     The Government argued in the alternative that the applicant had not provided the Russian Federation with the opportunity of remedying the matter, as the criminal proceedings had been reopened and were pending, the national authorities were conducting the investigation and the full circumstances of the case were still unknown. Therefore, his complaint should be dismissed for failure to exhaust domestic remedies, as it was premature. 43.     The Court reiterates 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 (see Yoyler v. Turkey , no. 26973/95, 13 January 1997, and Akdivar and Others v. Turkey , judgment of 30 August 1996, Reports 1996 ‑ IV, p. 1210, § 68). If the remedy chosen is adequate in theory, but in the course of time proves to be ineffective, the applicant is no longer obliged to exhaust it (see Tepe v. Turkey , 27244/95, Commission decision of 25   November 1996, as confirmed in Mikheyev v. Russia , no.   77617/01, §   86, 26 January 2006). 44 .     The Court observes that in the present case the Government accepted that the applicant had sustained injuries at the police station. The applicant’s complaint in this regard is therefore “arguable”. The authorities thus had an obligation to carry out an effective investigation into the circumstances in which the applicant sustained his injuries. The applicant made use of the possibility of seeking the institution of criminal proceedings against the police officers by putting his complaint into the hands of the authorities competent to pursue the matter. The investigation is still pending. The applicant and the Government disagree as to the effectiveness of this investigation. The Court therefore considers that this limb of the Government’s objection as to non-exhaustion of domestic remedies raises issues which are linked to the merits of the applicant’s complaints under Articles 3 of the Convention. The Court therefore decides to join this issue to the merits. (b)     The Court’s decision on the admissibility of the complaint 45.     The Court further notes that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2.     Merits (a)     Establishment of the facts 46.     The Court reiterates that allegations of ill-treatment must be supported by appropriate evidence. In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” (see Ireland v. the United Kingdom , judgment of 18 January 1978, Series A no. 25, pp. 64-65, § 161). However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see 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