CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 5 mars 2009

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page-break-after:avoid } .s68A4A370 { margin-top:12pt; margin-left:14.2pt; margin-bottom:36pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sB06EEFA8 { width:203.97pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block } FIRST SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 75472/01 by Tigran Khorenovich AYRAPETYAN against Russia The European Court of Human Rights (First Section), sitting on 5 March 2009 as a Chamber composed of:   Nina Vajić, President,   Anatoly Kovler,   Elisabeth Steiner,   Khanlar Hajiyev,   Sverre Erik Jebens,   Giorgio Malinverni,   George Nicolaou, judges, and André Wampach, Deputy Section Registrar , Having regard to the above application lodged on 19 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 Tigran Khorenovich Ayrapetyan, is a Russian national who was born in 1983 and lives in Moscow. He is represented before the Court by Ms Y.L. Liptser, a lawyer of the International Protection Centre in Moscow. The Russian Government were represented by Mr P. Laptev, former Representative of the Russian Federation before 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.     The applicant's arrest and alleged ill-treatment On 10 February 2001 at about 11 a.m. the applicant, who at the material time was a schoolboy, was arrested in a school yard by police officers while receiving a sum of money from another schoolboy. The applicant was suspected of extortion and was taken to Moscow police station no. 184 where he was locked in an office. The applicant submits that one of the police officers who had arrested him periodically entered the office, asked him questions and beat him. The applicant was then taken to another office where two more police officers were present. The officers explained to him that he had the right not to give evidence against himself. According to the applicant, they then started to ask him the questions, which he refused to answer. All three officers started to beat him. One of them forced the applicant to stay still in a half-squatting position while holding a metallic plate in his hands. The officer warned the applicant that if he failed to maintain the position, he would “get a kick in the chest”. Allegedly, when the applicant dropped the plate, he was kicked in the chest and the beatings continued. At one point the applicant was kicked in the face. On the verge of losing consciousness the applicant agreed to “sign all the papers”, after which he was placed in a cell. 2.     Medical examination at polyclinic no. 218 On the same day at about 10.10 p.m. the applicant was taken by a police officer to the casualty department at polyclinic no. 218, where he was examined by a doctor. The doctor concluded that the applicant's lower jaw was fractured and that he needed urgent in-patient examination by a surgeon. Following the doctor's examination, the applicant was taken back to the police station where he was once again placed in a cell. About an hour later the applicant was taken to another police station, no. 141, where his fingerprints were taken. On 11 February 2001 at about 2 a.m. the applicant was released. 3.     In-patient treatment in Moscow City Hospital no. 1 On the day of his release, the applicant was placed for in-patient treatment in Moscow City Hospital no. 1 ( Городская клиническая больница No. 1 г. Москвы ). The applicant was diagnosed as having a “fracture of the lower jaw in the area of the right condylar process with a dislocation of the articulator”. The medical report further stated that “the lower jaw was pathologically mobile and the configuration of the face had changed due to a post-traumatic oedema in the right parotic area”. In the course of his treatment the applicant underwent surgery to replant the articulator. The applicant was discharged from hospital on 2 March 2001. 4.     Criminal proceedings against the applicant On an unspecified date, criminal proceedings were instituted against the applicant who was charged with extortion. On 18 December 2001 the Butyrskiy Inter-Municipal Court of Moscow ( Бутырский межмуниципальный суд северо-восточного административного округа г. Москвы ) decided, on an application by the applicant, to terminate the criminal proceedings against him on the basis of an Amnesty Act in respect of minors and women enacted by the State Duma on 30 November 2001. On an unspecified date, the applicant's defence counsel lodged an appeal against the decision of the Inter-Municipal Court claiming that the applicant was not guilty and that he should have been acquitted. It is not clear what the outcome of this appeal was. 5.     The investigation of the applicant's alleged ill-treatment (a)     The applicant's complaints to various authorities On 15 February 2001 the applicant lodged a complaint with the Head of the Internal Affairs Department of the Ministry of the Interior ( начальник Управления собственной безопасности МВД России ) complaining that he had been subjected to ill-treatment by police officers. His complaint contained a detailed description of the events and of all three officers involved. He also indicated that one of them had earlier participated in his arrest and that another was called V. It appears that on 19 February 2001 the applicant's mother lodged similar complaints with the Butyrskiy Inter-District Prosecutor's Office of Moscow ( Бутырская межрайонная прокуратура г. Москвы ) and the Moscow City Prosecutor's Office ( прокуратура г. Москвы ). The case was assigned to Investigator G. of the Butyrskiy Inter-District Prosecutor's Office of Moscow. On 16 April 2001 the applicant lodged a complaint with the prosecutor of the Butyrskiy Inter-District Prosecutor's Office of Moscow. In his complaint the applicant submitted that no decision, whether to institute or refuse to institute criminal proceedings, had been taken so far on the basis of his allegations of ill-treatment. He further submitted that pressure had been exerted by the investigators of police station no. 184 on the witnesses in the criminal case against him and that his family had received threatening phone calls because they had complained that the applicant had been ill-treated. On 21 May 2001 the applicant's mother lodged a complaint with the Prosecutor General's Office ( Генеральная прокуратура РФ ). In her complaint she once again raised the issue of the alleged ill-treatment of the applicant by the police officers. She further submitted that since 19   February 2001 no effective investigative activities had been carried out. The case had been transferred from one investigator to another and no forensic medical examination had yet been ordered. She also alleged that their family had received to threatening phone calls. (b)     Decision to open a criminal case in respect of the applicant's complaints By a letter of 21 May 2001 Investigator G. informed the applicant's mother that “... on 21 May 2001 criminal proceedings no. 5649 have been instituted under Article 286 § 3 of the Criminal Code [( Уголовный кодекс РФ )] on the basis of your complaint about the physical injuries caused to [the applicant]”. (c)     Forensic medical examination of the applicant On 29 May 2001 Investigator G. ordered a forensic medical examination to be carried out. The investigator found that “On 10 February 2001 [the applicant] was arrested on suspicion of having committed an offence by police officers of Otradnoe District Police Station of Moscow [( Отделение внутренних дел района «Отрадное» г. Москвы )]. On 11   February 2001 [the applicant] was placed in Moscow City Hospital No. 1 as a result of physical injuries which, according to [him], had been inflicted by police officers.” A number of questions were put to the forensic expert. The latter was also provided with the applicant's medical file. (d)     The applicant's complaints in respect of alleged irregularities of the investigation and request for access to the case file On 8 June 2001 the applicant's mother lodged a complaint with Investigator G. In her complaint she submitted that during the medical examination carried out on 6 June 2001 she had discovered that certain vital documents were missing from the applicant's medical file. Among them she drew attention to the doctor's conclusion, in which, besides the diagnosis and need for urgent hospitalisation, it was also allegedly stated that the applicant had been brought to the casualty department by a police officer. The applicant's mother alleged that this document had been deliberately destroyed in order to substantiate the version of events which had been put forward by the police and according to which the applicant had been released from the police station at 10.10 p.m. on 10 February 2001. On 13 and 14 June 2001 the applicant's mother lodged similar complaints with the prosecutor of the Butyrskiy Inter-District Prosecutor's Office of Moscow and the Moscow City Prosecutor's Office respectively, requesting an inquiry to be carried out. In addition, she requested permission to familiarise herself with the materials in case no. 5649 in the presence of a public official. By letter of 14 June 2001 Investigator G. informed the applicant's mother that access to the case file could not be granted as, in accordance with the relevant rules of procedure, the victim, the accused, the civil plaintiff and the defendant could familiarise themselves with the case file only after the investigation had been completed. On an unspecified date before 5 July 2001, the head of a local human rights NGO, the Committee for Civil Rights ( Комитет за гражданские права ), acting as the applicant's defence counsel, sent a letter to the Moscow City Prosecutor complaining of the ineffective nature of the investigation into the applicant's allegations of ill-treatment. In his letter the defence counsel alleged that police officers B. (last name) and V. (first name) had participated in the beating of the applicant. He further alleged that police officer B. had been exerting pressure on witnesses in the criminal case against the applicant. The defence counsel alleged that as a result the witnesses had confirmed B.'s version of events according to which the applicant fell and injured his jaw during his apprehension. By letter of 7 August 2001 the acting head of the Department for Supervision of Investigation at the Moscow City Prosecutor's Office ( и.о. начальника Управления по надзору за следствием при прокуратуре г. Москвы ) informed the applicant's defence counsel that the criminal case against police officers of Otradnoe Police Station was being examined by the Butyrskiy Inter-District Prosecutor's Office. The letter stated that “a medical examination had been carried out and a number of witnesses had been questioned”. It was further stated that “the investigation was being supervised”. (e)     Decision to stay the investigation On 23 August 2001 Investigator G. decided to stay the preliminary investigation of criminal case no. 5649 on the grounds that “the person against whom charges should be brought had not been identified”. On 18 September 2001 the applicant's mother applied to Investigator G. for a copy of the decision to stay the preliminary investigation. (f)     Decision to resume the investigation By letter of 28 September 2001 the Deputy to the Butyrskiy Inter-District Prosecutor ( заместитель Бутырского межрайонного прокурора г. Москвы ) informed the applicant's mother that the decision to stay the preliminary investigation had been set aside and that the investigation had been resumed and assigned to Investigator Ye. of the Butyrskiy Inter-District Prosecutor's Office of Moscow ( следователь Бутырской межрайонной прокуратуры г. Москвы Е. ). A letter along similar lines dated 1 October 2001 was received by the applicant's father from Investigator Ye. By letter of 23 October 2001 the Moscow City Prosecutor's Office informed the applicant's defence counsel, in reply to his complaint about the ineffective nature of the investigation, that “the preliminary investigation had been resumed and the necessary investigative measures were being taken”. The letter also stated that “no evidence of pressure by the police officers of Otradnoe Police Station on witnesses or on the applicant's family had been found”. It was further stated that “the investigation was being supervised”. (g)     Decision to terminate the investigation By letter of 28 October 2001 Investigator Ye. informed the applicant and his parents that: “criminal proceedings no. 5649 ... have been terminated on 28 October 2001 ... owing to the lack of evidence of any crime having been committed.” It appears that the applicant's mother lodged an appeal against this decision with the Moscow City Prosecutor's Office. (h)     Replies of the authorities to the applicant's complaints and requests for access to the case file On 9 November 2001 the applicant's mother also requested permission to familiarise herself with the materials in criminal case no. 5649. By letter of 19 November 2001 she was informed by Investigator Y. that “... The legislation does not permit the parties to criminal proceedings to obtain copies of the case-file materials. By law, only the accused, the victim and their counsel have the right to familiarise themselves with the materials in the case file. Your status, as well as the status of [the applicant] and [his father], is that of a WITNESS. Therefore, you do not have the right to familiarise yourself with the materials in the case file. Since the termination of the present criminal case affects the lawful interests of [the applicant], only he , after filing a relevant request, will be allowed to familiarise himself with the decision, and only the decision, to terminate the criminal proceedings .” By letter of 11 January 2002 the Moscow City Prosecutor's Office informed the applicant's mother and defence counsel that the decision of 28   October 2001 “had been found to be lawful and substantiated”. The City Prosecutor's Office also forwarded to the Butyrskiy Inter-District Prosecutor's Office the complaint of the applicant's mother and his defence counsel about the lack of access to the case file. By letter of 21 January 2002 the Deputy to the Butyrskiy Inter-District Prosecutor informed the applicant's mother that as witnesses neither she, nor the applicant or his father, had the right to have full access to case file no. 5649. They could, however, familiarise themselves with the relevant decision to terminate the criminal proceedings by coming to the Butyrskiy Inter-District Prosecutor's Office at a convenient time. The letter further stated that “there were no grounds for transferring criminal case no. 5649 for further investigation to another prosecutor's office in Moscow, or for imposing criminal liability on police officer B. and other persons, or for imposing disciplinary sanctions on Investigator Y.”. By letter of 28 February 2002 the acting head of the Department for Supervision of Investigation at the Moscow City Prosecutor's Office informed the applicant's mother, in reply to her complaint about the ineffective nature of the investigation, that “the allegations of ill-treatment by police officers are not corroborated by the materials in the case”. In the letter it was further stated that “there was no evidence that the investigation was not being carried out in an objective way or that Investigator Ye. had made threats against witnesses”. By letter of 7 March 2002 the acting head of the Department for Supervision of Investigation at the Prosecutor General's Office ( и.о. начальника Управления по надзору за расследованием преступлений органами прокуратуры при Генеральной прокуратуре РФ ) informed the applicant's counsel, in reply to his complaint, that the General Prosecutor's Office had examined the applicant's case and the relevant materials. It had been found that the applicant had attempted to flee during his arrest on 10   February 2001. Therefore the police officers had had to apply force as a result of which the applicant fell and fractured his jaw. There had been no criminal element in the actions of the police officers and, therefore, there were no grounds for reversing the decision to terminate the criminal proceedings. (i)     Decision to resume the investigation According to the Government, on 11 June 2002 the investigation was re-opened and transferred to the Moscow City Prosecutor's Office. Some time later, policeman B. was charged with abuse of office under Article 286 of the Criminal Code. The investigation established that on 10 February 2001 at around 12 noon policeman B. escorted the applicant to Moscow police station no. 184 on suspicion of extortion. In office 5 of the station he inflicted blows to the applicant's jaw with his right fist with a view to forcing the applicant to confess. On 2 July 2003 the investigation in this case was completed and the case file was sent for examination to a trial court. On 15 December 2006 the Government submitted to the Court a copy of the judgment dated 10 February 2006, in which the Butyrskiy District Court of the city of Moscow had examined police officer B.'s alleged actions and acquitted him in respect of the episode involving the applicant. From the text of the judgment it follows that the court, having questioned a number of witnesses, including the applicant, his family members as well as the doctors and police officers, found that the statements and other evidence collected by the investigation had been too confusing and contradictory to enable the court to conclude with sufficient certainty that the injuries in question had indeed been inflicted by officer B.. The court did not elaborate on other possible causes of the applicant's injuries, having limited the analysis to the issue of B.'s involvement in the incident. The judgment of 10 February 2006 was upheld on appeal by the Moscow City Court on 29 March 2006. B.     Relevant domestic law 1.     Applicable criminal offences Article 21 § 2 of the Constitution provides that no one may be subjected to torture, violence or any other cruel or degrading treatment or punishment. Article 286 § 3 (a) of the Criminal Code provides that actions of a public official which clearly exceed his authority and entail a substantial violation of the rights and lawful interests of citizens, committed with violence or the threat of violence, shall be punishable by three to ten years' imprisonment with a prohibition on occupying certain posts or engaging in certain activities for a period of three years. 2.     Official investigation of crimes Article 109 of the Code of Criminal Procedure of 1961 ( Уголовно-процессуальный кодекс РСФСР ), as in force at the relevant time, provided that a prosecutor, investigator, inquiry body or judge were obliged to consider applications and information about any crime committed, and to take a decision on that information within three days. In exceptional cases, this time-limit could be extended to ten days. The decision should be either (a) to institute criminal proceedings, or (b) to refuse to institute criminal proceedings, or (c) to transmit the information to another competent authority. Article 209 of the Code provides that in order to terminate the proceedings the investigator should adopt a reasoned decision with a statement of the substance of the case and the reasons for its termination. A copy of the decision to terminate the proceedings should be forwarded by the investigator to the prosecutor. The investigator should also notify the alleged victim and the complainant in writing of the termination of the proceedings and the reasons for this, and explain how they could appeal against this decision. An appeal against the decision to terminate proceedings could be lodged with the prosecutor or a court within five days of the date of notification of the decision. According to Section 210 of the Code, the prosecutor could reverse the above decision of the investigator and reopen the proceedings. Under Article 211 of the Code, the prosecutor was responsible for general supervision of the investigation. In particular, the prosecutor could order that specific investigative activities be carried out, transfer the case from one investigator to another or reverse unlawful and unsubstantiated decisions taken by investigators and inquiry bodies. COMPLAINTS 1.     The applicant complained under Article 3 of the Convention that he had been ill-treated by police officers of the Otradnoe District Police Station of Moscow during his detention on 10 February 2001. 2.     The applicant further complained under Article 13 of the Convention that no effective investigation had been carried out on the basis of his allegations of ill-treatment. In particular, he submitted that the identity of the perpetrators was known but that no measures had been taken to bring them to justice. He further submitted that he, his parents and defence counsel acting on his behalf had complained on numerous occasions to the relevant public authorities, but to no avail. THE LAW Under Articles 3 and 13 of the Convention the applicant complained that he had been ill-treated by the policemen on 10 February 2001. He also complained that the authorities had failed to carry out a proper investigation in this connection. These Convention provisions provide as follows: Article 3 of the Convention “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 13 of the Convention “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.” A.     The parties' submissions The Government disagreed with the applicant's complaints and allegations and submitted that the applicant had failed to exhaust the domestic remedies in so far as he had applied to the Court without waiting for the outcome of criminal proceedings against police officer B. They also submitted that in view of the fact that police officer B. had been acquitted on charges relating to the events of 10 February 2001 the applicant's allegations of ill-treatment were without basis. In this respect, the Government also argued that the Court had limited competence to review the factual findings of the domestic courts and that it should therefore follow their conclusions in respect of the events of 10 February 2001. The applicant maintained his complaints. B.     The Court's assessment The Court notes that the respondent Government's point is no longer valid as the applicant took part in the criminal proceedings against officer B. and was ultimately unsuccessful. In such circumstances, the fact that he applied to the Court whilst the domestic proceedings were still pending is irrelevant. Since the Government did not argue that the venues chosen and employed by the applicant to bring his grievances to the attention of the domestic authorities were ineffective or otherwise inappropriate, the Court finds that the applicant complied with the requirement to exhaust domestic remedies and rejects the Government's objection. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. For these reasons, the Court unanimously Declares the application admissible, without prejudging the merits of the case. André Wampach   Nina Vajić Deputy Registrar   President