CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 30 juillet 2009

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text-indent:-17pt; text-align:justify } .s127C7598 { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .sD66C1369 { margin-top:0pt; margin-left:17.3pt; margin-bottom:0pt; text-align:justify } .s308FBE0C { margin-top:0pt; margin-left:17.3pt; margin-bottom:12pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sAC041635 { width:44.61pt; display:inline-block } .sB48CFBB0 { width:171.3pt; display:inline-block } .sF2E32F9B { width:36.61pt; display:inline-block } .s5F32E900 { width:208.31pt; display:inline-block }       FIRST SECTION       CASE OF VLADIMIR FEDOROV v. RUSSIA   (Application no. 19223/04)           JUDGMENT     STRASBOURG   30 July 2009   FINAL   30/10/2009   This judgment may be subject to editorial revision. In the case of Vladimir Fedorov v. Russia , The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Nina Vajić, President,   Anatoly Kovler,   Elisabeth Steiner,   Dean Spielmann,   Sverre Erik Jebens,   Giorgio Malinverni,   George Nicolaou, judges, and Søren Nielsen, Section Registrar , Having deliberated in private on 7 July 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 19223/04) 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 Vladimir Aleksandrovich Fedorov (“the applicant”), on 2 March 2004. 2.     The Russian Government (“the Government”) were represented by Mr P. Laptev and Mrs V. Milinchuk, former Representatives of the Russian Federation at the European Court of Human Rights. 3.     The applicant alleged, in particular, that he had been severely beaten up by police officers and that there had been no effective investigation into his complaints of ill-treatment. 4.     On 7 November 2006 the President of the First Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). 5.     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 6.     The applicant was born in 1976 and lived until his arrest in the town of Prokopyevsk in the Kemerovo Region. He is now serving his sentence in a correctional colony in Kemerovo. A.     Applicant’s arrest and alleged ill-treatment in a police station 7.     On 12 March 2003, at approximately 10 a.m., police officers of the Rudnichniy District Police Department in Prokopyevsk stopped the applicant and his friend, Ms S., in a street and took them to the Rudnichniy District police station. 8.     The applicant provided the following description of the subsequent events. He was placed in office no. 17 where five police officers, D., A., I., K. and Ko. severely beat him up. Ms S. was left in a hall, near office no. 17, and heard him screaming. She saw the applicant, covered with injuries and barely walking, two hours later. On 13 March 2003, unable to bear the beatings, the applicant wrote a statement, prompted by the police officers, in which he confessed to having committed a robbery. He was released on the following day under his own recognisance not to leave the town. 9 .     On 15 March 2003 the applicant attended the Central Trauma Unit where he was examined. The examining doctor recorded the following injuries on the applicant’s body: injuries to the kidneys, injuries and bruises on the upper extremities, buttocks and left shank and an injury to the soft tissue of the head. Treatment was recommended. 10 .     On 20 March 2003 the applicant lodged a complaint with the Prokopyevsk Town Prosecutor, seeking institution of criminal proceedings against the police officers who had ill-treated him on 12 and 13 March 2003. 11.     Five days later the Prokopyevsk Town prosecutor’s office remitted the applicant’s complaint to the Prokopyevsk Town Police Department with a request to conduct an official inquiry into the events of 12 and 13 March 2003. 12 .     On 7 April 2003 the head of the Prokopyevsk Town Police Department issued a decision, approving the findings of the official police inquiry into the applicant’s complaints. The decision read as follows: “On 25 March 2003 the police department received [the applicant’s] complaint from the town prosecutor’s office; [in that complaint the applicant] indicates that the police officers of the district police station applied psychological and physical pressure to him and his acquaintance, Ms S., in order to extract a confession statement. According to [the applicant], on 12 March 2003, at approximately 10.00 a.m., he and Ms S. were arrested by a police officer, D., and taken to the Rudnichniy District Police Department, where in office no. 17, [officer] D., having handcuffed [the applicant] to the chair back, beat him with a shovel handle. [The applicant] indicated that on a number of occasions, in the police station between 12 and 14 March 2003, the police officers D., A., I., K. and Ko. had taken him from a detention unit to the service garage, where [they] had beaten him up, had buried him naked in the snow, had threatened him and his girlfriend with violence, [and] had applied psychological pressure. Ms S. explained that after [she had been] taken to the police station, she had been near office no. 17 for approximately two hours and had heard [the applicant] screaming. After [the officer] D. had questioned her, she was placed in a detention unit where she remained until 9.00 a.m. on 13 March 2003. Ms S. also asserts that psychological pressure was applied to her. The police officer, D., stated that on the basis of information received pertaining to an armed robbery, on 12 March 2003, at approximately 10.00 a.m., he had arrested [the applicant]. As the latter had attempted to hide on the premises of a psychiatric hospital and a [hospital] staff member had called [the police], [the applicant] was taken to the police station in a police car. On the same day criminal case no. 665913 was opened pursuant to Article 162 § 2 of the Russian Criminal Code in respect of the robbery. [The officer] D. also explained that Ms S. had voluntarily gone to the police station. D. had a talk with her (not an [official interrogation]) as she had close ties to [the applicant] and could have certain information. Ms S. was not detained in the detention unit. A police officer working with arrestees, Mr Se., stated in his explanation note, that Ms S. had been registered by housing maintenance authorities (registration no. 1309) and, on an order from [officer] D., [he] had verified information about her in the address inquiry office. However, she had not been placed in the detention unit. All the police officers, who were named in [the applicant’s] complaint and statements, save for Mr K. who had been on annual leave since 24 March 2003, firmly deny that physical force, threats or psychological pressure were applied to [the applicant]. However, taking into account that on 15 March 2003 [the applicant] applied to the Central Trauma Unit (certificate no. 1983), which recorded injuries, [and having regard to] discrepancies between statements of individuals and police officers, it is necessary to perform certain investigative actions to establish the truth, which is impossible to do within the limits of the official inquiry and is within the competence of the prosecution authorities.” 13.     On 15 April 2003 the applicant was re-arrested and placed in a temporary detention ward. 14 .     Three days later an assistant of the Prokopyevsk Town Prosecutor, having examined the medical certificate of 15 March 2003 and the conclusions of the official police inquiry, dismissed the applicant’s request for institution of criminal proceedings against the police officers because “there was no objective data” confirming the applicant’s allegations. 15 .     On 5 May 2003 the applicant underwent a chest X-ray examination. As is apparent from a medical certificate issued by a prison doctor on 26   May 2004, the X-ray showed that the applicant had a fracture in the front part of the ninth rib in the consolidation phase. 16.     Relying on medical evidence in support of the applicant’s allegations of ill-treatment, the applicant’s father complained to the Prokopyevsk Town Prosecutor about the assistant prosecutor’s decision of 18 April 2003. On 1   October 2003 the Town Prosecutor quashed the decision of 18 April 2003, pointing to the incompleteness of and defects in the assistant prosecutor’s decision, and authorised an additional inquiry. 17 .     On 13 October 2003 an assistant of the Prokopyevsk Town Prosecutor, once again relying on the police officers’ denials of the use of force, refused to institute criminal proceedings against them. The relevant part of the decision reads as follows: “On 15 March 2003, in the trauma unit, [the applicant] was diagnosed with several injuries; however, in the course of the inquiry it has been impossible to establish the time and mechanism of their appearance without a forensic medical examination. The circumstances of [the applicant’s] beatings as indicated by him were not corroborated by any objective data. The police officers ... interrogated in the course [of the inquiry] strongly object to [the applicant’s] arguments concerning the application of unlawful investigation methods...” 18.     On 10 March 2004 the Prokopyevsk Town Prosecutor sent a letter to the applicant’s father informing him that his complaints had been examined and had been dismissed by a decision of 13 October 2003. The Town Prosecutor also informed the applicant’s father that he had no standing in the proceedings pertaining to the alleged beatings of the applicant and that, therefore, he had no right to appeal against the decision of 13 October 2003. 19 .     On the same day the Prokopyevsk Town Prosecutor sent a letter to the applicant, notifying him of the decision of 13 October 2003. The Prosecutor added that the decision of 13 October 2003 had been lawful and that there were no grounds to annul it. As shown by the postmark, the letter was served on the applicant on 17 March 2004. B.     Trial and appeal proceedings 20 .     In the meantime, on 15 September 2003, the Rudnichniy District Court of Prokopyevsk found the applicant guilty of aggravated theft, fraud and robbery and sentenced him to seven years and six months’ imprisonment. The District Court based the conviction on the applicant’s partial confession given in open court, statements by the victims and witnesses, including Ms S., a record of a search in the applicant’s flat showing that the victims’ belongings had been found and seized, records of identification parades and other material evidence. The applicant’s confession which he had given on 13   March 2003 did not serve as the basis of his conviction. The District Court examined the applicant’s allegations of police brutality. It noted that the prosecution authorities had conducted an inquiry into the applicant’s complaints about the beatings and had decided not to institute criminal proceedings because the allegations had not been proven. 21.     The applicant and his lawyer appealed, arguing, inter alia, that the District Court had not examined his ill-treatment complaints thoroughly and that it had disregarded the medical evidence supporting the applicant’s version of events. 22 .     On 18 November 2003 the Kemerovo Regional Court upheld the applicant’s conviction, endorsing the reasons given by the District Court. 23.     According to the Government, on 20 October 2006 the case file pertaining to the inquiry into the applicant’s ill-treatment complaints was destroyed due to the archiving time-limit. Opening of the criminal investigation into the ill-treatment complaints 24 .     On 18 January 2007 a deputy prosecutor of the Kemerovo Region instituted criminal proceedings against the police officers who, according to the applicant, had tortured him in March 2003. 25.     On 18 May 2007 an investigator of the Prokopyevsk Town Prosecutor’s office closed the criminal proceedings, finding that there was no prima facie case of ill-treatment. The investigator based his decision on statements by the applicant and Ms S., who had confirmed their allegations of police brutality, and statements by a number of police officers, investigators and a judge who had come into contact with the applicant in March 2003. Due to the remoteness of the events in question the interrogated officials could not recall certain details of the applicant’s arrest and his subsequent detention in the police station or even if they had seen or talked to the applicant on 12 and 13 March 2003. The police officers, the alleged perpetrators of the offence, were also interrogated. They fiercely denied that force had been used and also had difficulties recalling either the applicant himself or the details of his presence in the police station. The investigator questioned two persons who had allegedly been detained in the police station together with the applicant in March 2003. Those persons did not remember the applicant and merely stated that during their detention in the police station they had not been ill-treated and had not heard anyone complain about police brutality. The investigator had been unable to examine the medical evidence, including the X-ray records made in May 2003 and records of the medical emergency unit of the Prokopyevsk Town Hospital, as they had been destroyed due to the archiving time-limit. The investigator concluded that the applicant’s ill-treatment allegations were not supported by any evidence, save for statements given by him and his relatives. The investigator noted that those statements had to be treated with caution as they had been made by persons having a direct interest in the case. 26.     It appears that, on an unspecified date, the decision of 18 May 2007 was annulled and a new round of criminal proceedings commenced. 27.     The applicant lodged a complaint with the Prokopyevsk Town Prosecutor, seeking the transfer of the case file to the Kemerovo Regional Prosecutor’s office for further investigation. He also asked to change the legal classification of the police officers’ actions and to ensure his and his relatives’ safety. 28.     On 27 July 2007 a deputy to the Prokopyevsk Town Prosecutor dismissed the applicant’s complaint in full. 29 .     On 6 August 2007 the applicant received a letter from the Prokopyevsk Town Prosecutor, informing him that the criminal proceedings were stayed as “it was impossible to identify persons who could be charged” with a criminal offence against the applicant. II.     RELEVANT DOMESTIC LAW A.     Investigation into criminal offences 30 .   The Code of Criminal Procedure of the Russian Federation (in force since 1 July 2002, “the CCrP”) establishes that a criminal investigation can be initiated by an investigator or a prosecutor on a complaint by an individual or on the investigative authorities’ own initiative, where there are reasons to believe that a crime was committed (Articles 146 and 147). A prosecutor is responsible for overall supervision of the investigation (Article   37). He can order specific investigative actions, transfer the case from one investigator to another or order an additional investigation. If there are no grounds to initiate a criminal investigation, the prosecutor or investigator issues a reasoned decision to that effect which has to be notified to the interested party. The decision is amenable to appeal to a higher-ranking prosecutor or to a court of general jurisdiction within a procedure established by Article 125 of the CCrP (Article 148). Article 125 of the CCrP 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.     Civil-law remedies against illegal acts by public officials 31.     Article 1064 § 1 of the Civil Code of the Russian Federation provides that damage caused to the person or property of a citizen must be compensated for in full by the tortfeasor.   Pursuant to Article 1069, a State agency or a State official will be liable to a citizen for damage caused by their unlawful actions or failure to act. Such damage is to be compensated for at the expense of the federal or regional treasury. Articles 151 and 1099-1101 of the Civil Code provide for compensation for non-pecuniary damage. Article 1099 states, in particular, that compensation must be awarded for non-pecuniary damage irrespective of any award for pecuniary damage. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 32.     The applicant complained that on 12 and 13 March 2003 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 the incident. The Court will examine this complaint from the standpoint of the State’s 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 33.     In their initial observations lodged with the Court on 5 March 2007 the Government submitted that the applicant had failed to exhaust the domestic remedies available to him under Articles 125 and 148 of the Russian Code of Criminal Procedure. They stressed that he had not appealed against the decision of 13 October 2003 to the Rudnichniy District Court of Prokopyevsk. In the alternative, the Government, relying on statements by the Prosecutor General’s office and the Ministry of Internal Affairs, noted that the applicant had not been subjected to treatment in violation of the Article 3 guarantees. 34.     In their further observations submitted to the Court on 27 November 2007, the Government pointed to the institution of the criminal proceedings in respect of the applicant’s ill-treatment complaints and stated that this time the applicant had failed to appeal against the deputy prosecutor’s decision of 27 July 2007. They further noted that another form of remedy was open to the applicant. He could have brought a civil action under Articles 151 and 1069 of the Russian Civil Code seeking compensation for pecuniary and non-pecuniary damage caused to him by public officials. According to the Government, such an action would have had very strong prospects of success, as in 2004 the Supreme Court of the Karachayeva-Cherkessiya Republic had delivered a judgment accepting an action brought by a certain individual against prosecution authorities and awarding him 10,000 Russian roubles in compensation for damage. 35.     The applicant submitted that having learnt about the prosecution’s decision of 13 October 2003 by which his ill-treatment complaints had been dismissed, he had not appealed against it because the Rudnichniy District Court had already examined his ill-treatment complaints and had dismissed them, relying on the prosecutor’s decision of 18 April 2003 which had been similar to the one issued on 13 October 2003. The applicant did not expect that an appeal against that decision to the same court would have been any more effective. B.     The Court’s assessment 1.     Admissibility 36.     The Court notes that the Government listed three possible forms of remedy which could have been used by the applicant: a complaint against the prosecutor’s decision of 13   October 2003 to the Rudnichniy District Court, an appeal against the prosecutor’s decision of 27   July 2007 and a civil action for damages. (a)     General principles 37.     The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 of the Convention obliges those seeking to bring their case against the State before the Court to use first the remedies provided by the national legal system. Consequently, States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system.   The rule is based on the assumption, reflected in Article 13 of the Convention - with which it has close affinity -, that there is an effective remedy available in respect of the alleged breach in the domestic system whether or not the provisions of the Convention are incorporated in national law.   In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see Handyside v. the United Kingdom , 7   December 1976, § 48, Series A no. 24). 38.     Under Article 35 of the Convention, normally recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged.   The existence of the remedies in question must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see, inter alia , Vernillo v. France , 20 February 1991, § 27, Series A no. 198, and Johnston and Others v. Ireland , 18 December 1986, § 22, Series A no. 112). Article 35 also requires that the complaints made before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used (see Cardot v. France , 19   March 1991, § 34, Series A no. 200). 39.     Furthermore, in the area of the exhaustion of domestic remedies, there is a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success.   However, once this burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government had in fact been used or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement. 40.     The Court would emphasise that the application of the rule must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up. Accordingly, it has recognised that the rule of domestic remedies must be applied with some degree of flexibility and without excessive formalism (see Cardot , cited above, § 34). It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; in reviewing whether it has been observed it is essential to have regard to the particular circumstances of each individual case (see Van Oosterwijck v. Belgium , 6 November 1980, § 35, Series A no.   40). This means amongst other things that it must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate as well as the personal circumstances of the applicants (see Akdivar and Others v. Turkey , 16 September 1996, §§ 65-68, Reports of Judgments and Decisions 1996 ‑ IV). (b)     Application of the general principles to the present case (i)     Alleged failure to appeal against the assistant prosecutor’s decision of 13   October 2003 41.     The Court reiterates that the applicant’s allegations of ill-treatment were initially examined by the assistant prosecutor who, in a decision of 18   April 2003, decided not to institute criminal proceedings. Following the applicant’s father’s complaint to a higher-ranking prosecutor, that decision was quashed on 1 October 2003 and a new round of a prosecution inquiry was authorised. However, merely thirteen days later, on 13 October 2003, the assistant prosecutor closed the inquiry, refusing to institute criminal proceedings. Under Articles 125 and 148 of the Russian Code of Criminal Procedure that decision was amenable to appeal to a higher-ranking prosecutor or to a court of general jurisdiction (see paragraph 30 above). The parties did not dispute the fact that the applicant had not appealed to a higher-ranking prosecutor. However, the applicant argued that he had made use of the judicial avenue for the purposes of exhausting remedies, by raising his ill-treatment complaint before the Rudnichniy District Court and then on appeal before the Kemerovo Regional Court. 42.     As regards an appeal to a higher-ranking prosecutor, the Court has previously held that such an appeal does not constitute an effective remedy within the meaning of Article 35 of the Convention (see Belevitskiy v.   Russia , no. 72967/01, § 60, 1 March 2007). 43.     The position is, however, different with regard to the possibility of challenging before a court of general jurisdiction a prosecutor’s decision not to investigate complaints of ill-treatment. The Court has previously found that in the Russian legal system the power of a court to reverse a decision not to institute criminal proceedings is a substantial safeguard against the arbitrary exercise of powers by the investigating authorities (see Trubnikov v. Russia (dec.), no.   49790/99, 14   October 2003, and Belevitskiy , cited above, § 61). 44.     The Court observes that in the present case the applicant did not make use of the judicial appeal, in the formal sense, as laid down by Article 125 of the Russian Code of Civil Procedure, by instituting judicial proceedings against the assistant prosecutor’s decision of 13 October 2003. Instead, he raised the ill-treatment issue before the Rudnichniy District Court, the trial court which determined the criminal charge against him, and then on appeal before the Kemerovo Regional Court. 45.     In this respect, the Court reiterates its finding made in the Belevitskiy case (cited above, § 64) that an ill-treatment complaint raised before a trial court cannot, as a general rule, be regarded as a part of the normal process of exhaustion in respect of the complaints the applicant made to the Court. At the same time the Court accepted that in certain circumstances a more flexible approach in matters of exhaustion might be called for, taking into account that the rule of exhaustion of domestic remedies must be applied with some degree of flexibility and without excessive formalism. The Court noted that the stressful situation in which persons held in custody often found themselves, together with an absence of legal training and professional legal assistance, might be taken into account when deciding whether an applicant was exempted from pursuing a formal channel of judicial appeal (ibid, § 66). 46.     Shortly after the Belevitskiy judgment had been adopted, the Court identified another situation which called for a more flexible application of the exhaustion rule. The Court again examined a case in which the applicants had not brought a formal complaint against the prosecutor’s refusal to institute criminal proceedings against police officers, but had opted to raise the ill-treatment complaint before the trial and appeal courts. Applying the approach adopted in the above cited Belevitskiy case, the Court found as follows: “since the same domestic courts, to which a formal criminal complaint laid, examined the substance of the applicants’ complaints about the ill-treatment in the police station and the prosecutor’s inactivity, the applicants cannot be said to have failed to exhaust domestic remedies. It follows that the complaint cannot be declared inadmissible for non-exhaustion of domestic remedies.” ( see Akulinin and Babich v. Russia , no. 5742/02, § 33, 2 October 2008) 47.     The Court considers that this finding is fully applicable to the circumstances of the present case.   The Court firstly observes that the applicant raised an ill-treatment complaint before the Rudnichniy District Court during the trial proceedings against him, complaining to the trial court about police brutality and the prosecutor’s indifference to his claims. At that time the prosecutor’s decision of 18 April 2003, refusing institution of criminal proceedings, was still valid and a new round of the prosecution inquiry had not yet been authorised (see paragraphs 14 and 20 above). The Court notes that the District Court accepted the applicant’s complaint alleging ill-treatment and the inadequacy of the prosecutor’s investigation into the events in question. It took cognisance of the merits of the applicant’s claims, enquired of the prosecutor’s office about the investigation, examined the reasonableness of the assistant prosecutor’s decision of 18 April 2003 and based its conclusion on the findings made in that decision, taking the view that the assistant prosecutor’s assessment could not be said to be wrong. The court’s reasoning was not confined to the compatibility of the applicant’s complaint with the formal requirements. 48.     Furthermore, the applicant and his lawyer once again drew the attention of the domestic authorities to the alleged violation of the applicant’s rights by raising the ill-treatment complaint in their statements of appeal against the judgment of 15 September 2003. The Court does not lose sight of the fact that neither the applicant nor his lawyer cited the assistant prosecutor’s decision of 13 October 2003, while complaining about the prosecutor’s failure to conduct an effective inquiry. However, the Court does not find it surprising in a situation where, as is apparent from the materials submitted by the parties (see paragraph 19 above), the decision of 13 October 2003 had not yet been notified to the applicant. The Kemerovo Regional Court, on appeal, examined the merits of the applicant’s complaint and dismissed it, endorsing the reasons given by the District Court. 49 .     The Court observes that the Government did not argue that, in pursuing this avenue of judicial review, the applicant had removed from the courts the option of examining the relevant issues. The Court reiterates that the applicant learned about the decision of 13 October 2003 after the trial. The Court does not find it unreasonable that, after being apprised of that decision - in a situation where the trial and appeal courts had analysed the applicant’s ill-treatment complaint and the assistant prosecutor’s decision of 18 April 2003, which was fairly similar to that of 13   October 2003, being based on the same evidence and containing the same findings - the applicant did not lodge a separate complaint with the same court following the formal procedure as required by the Russian Code of Criminal Procedure (see paragraph 30 above). In circumstances where the domestic courts at two levels of jurisdiction examined and dismissed the applicant’s ill-treatment complaints, basing their conclusions on the assistant prosecutor’s findings, it is not apparent that a challenge to the assistant prosecutor’s decision of 13   October 2003 through the avenue of a separate criminal procedure before the same courts would have been any more successful, or would have been decided on the basis of any other issues. The Court does not lose sight of the fact that the Government did not argue otherwise. 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 in the particular circumstances of the present case (see, for similar reasoning, Vladimir Romanov v. Russia , no. 41461/02, §§ 50-52, 24   July 2008). 50.     The Court reiterates that the objection of non-exhaustion of domestic remedies cannot be raised against the applicant if, in spite of the latter’s failure to observe the forms prescribed by law, the competent authority has nevertheless examined the substance of the claim (see, mutatis mutandis, Dzhavadov v. Russia , no.   30160/04, §   27, 27   September 2007; Skałka v. Poland (dec.), no.   43425/98, 3   October 2002; Metropolitan Church of Bessarabia and Others   v. Moldova (dec.), no.   45701/99, 7 June 2001; and Edelmayer   v.   Austria (dec.), no.   33979/96, 21   March 2000). The Court therefore considers that the circumstances of the present case are similar to those examined by the Court in the Akulinin and Babich case (cited above) and finds that by raising, before the trial and appeal courts, a complaint about ill-treatment and the authorities’ failure to investigate, the applicant provided the domestic authorities with the opportunity to put right the alleged violation. It follows that the applicant cannot be said to have failed to exhaust domestic remedies, in so far as he did not lodge a separate judicial complaint against the assistant prosecutor’s decision of 13 October 2003, and that this part of the Government’s objection as to the non-exhaustion of domestic remedies should be dismissed. (ii)      Civil action 51.     The Court observes that the Government, without providing any further explanation, suggested that an action for damages lodged with a court could have been an effective remedy in the applicant’s case for his complaints about the alleged ill-treatment in the police station. At the same time, without providing a copy of the relevant judgment, they supplied an example from domestic practice showing that by using the means in question it would have been possible for the applicant to obtain compensation for damage. In this connection, the Court observes that, in the absence of documents supporting the Government’s assertion, it is unable to identify the relevance of that judgment to the issue of the effectiveness of an action for damages as a remedy in the circumstances of the present case. Furthermore, in the Court’s view, the one case cited by the Government does not suffice to show the existence of settled domestic practice that would prove the effectiveness of the remedy. 52.     In any event, the Court reiterates its finding in a number of cases that in situations of wilful ill-treatment the breach of Article 3 cannot be remedied exclusively through an award of compensation to the victim. This is so because, if the authorities could confine their reaction to incidents of wilful ill-treatment by State agents to the mere payment of compensation, while not doing enough to prosecute and punish those responsible, it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity, and the general legal prohibition of torture and inhuman and degrading treatment, despite its fundamental importance, would be ineffective in practice (see, among many other authorities, Krastanov v. Bulgaria , no. 50222/99, § 60, 30 September 2004, and mutatis mutandis, Yaşa v. Turkey , 2 September 1998, Reports 1998-VI, § 74; Tanrıkulu v. Turkey [GC], no. 23763/94, § 79, ECHR 1999-IV; Velikova v. Bulgaria , no.   41488/98, § 89, ECHR 2000-VI; Salman v. Turkey [GC], no. 21986/93, § 83, ECHR 2000-VII; Gül v. Turkey , no. 22676/93, §   57, 14 December 2000; Kelly and Others v. the United Kingdom , no.   30054/96, § 105, 4 May 2001; and Avşar v. Turkey [GC], no. 25657/94, § 377, ECHR 2001-VII). 53.     It is apparent from the above that a judicial award of compensation to the applicant represents only one part of the group of measures necessary to provide redress for ill-treatment by State agents (see, mutatis mutandis, Nikolova and Velichkova v. Bulgaria , no.   7888/03, §   56, 20   December 2007). In particular, in the case of Vladimir Romanov v. Russia (cited above, §§ 71-91), the Court found that a successful civil action could not, in the absence of an efficient investigation into the alleged instance of ill-treatment, provide the applicant with the appropriate redress and remove his victim status within the meaning of Article 34 of the Convention for his complaints raised before the Court under Article 3 of the Convention. 54.     The Court also reiterates its finding in the context of a complaint under Article 13 of the Convention that there is no case-law authority for Russian civil courts being able, in the absence of any results from a criminal investigation, to consider the merits of a civil claim relating to alleged serious criminal actions (see Tarariyeva v. Russia , no. 4353/03, ECHR 2006 ‑ ... (extracts); Isayeva v. Russia , no.   57950/00, § 155, 24   February 2005; and Isayeva and Others v. Russia , nos. 57947/00, 57948/00 and 57949/00, §   147, 24 February 2005). The Court stressed that while the Russian civil courts in theory have the capacity to make an independent assessment of fact, in practice the weight attached to a preceding criminal inquiry is so important that even the most convincing evidence to the contrary furnished by a plaintiff would be discarded and such a remedy would prove to be only theoretical and illusory (see Menesheva v. Russia , no. 59261/00, § 77, ECHR 2006 ‑ III). The Court has found that in a case where criminal proceedings against public officials were discontinued without any finding of guilt, any other remedy available to the applicant, including a claim for damages, had limited chances of success and could be regarded as theoretical and illusory rather than practical and effective (see Dedovskiy and Others v. Russia , no. 7178/03, §   101, 15 May 2008). 55 .     The Court therefore finds that the question whether an action for damages could have been considered an accessible and effective remedy capable of providing the applicant with adequate redress for the alleged violation of his rights under Article 3 of the Convention is closely linked to the question whether the investigation into the events in question was prompt, thorough and effective. However, that issue relates to the merits of the applicant’s complaints under Article 3 of the Convention. The Court therefore decides to join this issue to the merits. (iii)    Failure to appeal against the decision of 27 July 2007 56.     The Court notes the further argument by the Government that a judicial complaint against the decision of 27 July 2007 could have provided the applicant with redress for the alleged violation of his rights. In this connection, the Court reiterates that on 18 January 2007 criminal proceedings were instituted against the police officers who had allegedly taken part in the events of March 2003. The applicant lodged a procedural request seeking, inter alia, a transfer of the case to the office of a higher-ranking prosecutor for further investigation. The complaint was dismissed by a decision of a deputy Town Prosecutor of Prokopyevsk on 27 July 2007. 57.     The Court observes that the deputy prosecutor’s decision of 27 July 2007 did not bar or preclude in any way the further investigation into the applicant’s ill-treatment complaints. It was a mere interlocutory decision pertaining to certain procedural aspects within the criminal investigation into the impugned events of March 2003. The Court reiterates that the decisive question in assessing the effectiveness of a remedy concerning a complaint of inhuman and degrading treatment is whether the applicant could have raised that complaint before a prosecutor in order to obtain direct and timely redress, and not merely an indirect protection of the rights guaranteed in Article   3 of the Convention. The remedy can be either preventive or compensatory in nature (see, among other authorities, Kova l v. Ukraine , no.   65550/01, §   94, 19 October 2006). The Court notes that the Government did not explain how a judicial appeal against an interlocutory prosecutor’s decision could have offered such preventive or compensatory redress, or both, for allegations of treatment which had been contrary to Article 3 of the Convention (see, for similar reasoning, Ostrovar v. Moldova (dec.), no. 35207/03, 22 March 2005). Accordingly, the Court does not consider that the Government have discharged the burden upon them of proving that a complaint against the decision of 27 July 2007 was capable of providing redress in respect of the applicant’s Convention complaint. 58.     If, however, this part of the Government’s objection is interpreted as implying that the applicant’s complaints under Article 3 are premature, as the criminal proceedings were re-opened and are now still pending, the Court first reiterates that if an individual raises an arguable claim that he has been seriously ill-treated by the police, a criminal 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, Decisions and Reports 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 , 30 August 1996, § 68, Reports 1996 ‑ IV). 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 pursue it (see Tepe v.   Turkey , 27244/95, Commission decision of 25   November 1996, DR 87-A, p. 90, as confirmed in Mikheyev v. Russia , no.   77617/01, §   86, 26 January 2006). 59 .     The Court notes that in the present case the criminal proceedings were instituted against the police officers almost four years after the alleged instance of ill-treatment in the police station in March 2003. 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