CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 17 décembre 2009

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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 } .s81CCF55C { margin-top:0pt; margin-left:17pt; margin-bottom:12pt; text-indent:-17pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s82D7B801 { width:22.93pt; display:inline-block } .sF9287AF { width:174.97pt; display:inline-block } .sF2E32F9B { width:36.61pt; display:inline-block } .s5F32E900 { width:208.31pt; display:inline-block }       FIRST SECTION             CASE OF DENIS VASILYEV v. RUSSIA   (Application no. 32704/04)               JUDGMENT       STRASBOURG   17 December 2009   FINAL   17/03/2010   This judgment will become final in the circumstances set out in Article   44 §   2 of the Convention. It may be subject to editorial revision. In the case of Denis Vasilyev v. Russia , The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Christos Rozakis, President,   Nina Vajić,   Anatoly Kovler,   Elisabeth Steiner,   Dean Spielmann,   Giorgio Malinverni,   George Nicolaou, judges, and Søren Nielsen, Section Registrar , Having deliberated in private on 26 November 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 32704/04) 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 Denis Vladimirovich Vasilyev (“the applicant”), on 23 July 2004. 2.     The applicant, who had been granted legal aid, was represented by Ms   M. Voskobitova, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr   P. Laptev, former Representative of the Russian Federation at the European Court of Human Rights. 3.     The applicant alleged, in particular, that the assault on him had not been properly investigated, that he had been the victim of ill-treatment on the part of police officers and medical personnel which had likewise not been investigated, and that he had not been recognised as a civil party in the criminal proceedings. 4.     On 4 April 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 of the Convention). 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 Court decided, after consulting the parties, that no hearing in the case was required (Rule 59 § 3 in fine ). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     The applicant was born in 1983 and lives in Moscow. A.     Assault on the applicant and medical treatment 1.     Assault on the applicant and his friend 7.     On 29 June 2001 the applicant and his school friend Mr N. were spending the evening together. At about 11.30 p.m. they went to Mr N.’s place as Mr N., who is a diabetic, needed an insulin injection. After that they took a taxi to the applicant’s place. 8.     While walking through the courtyard they were assaulted, near house no. 16/18 on Shcherbakovskaya Street in the Eastern Administrative District of Moscow. The attacker called out to them from behind and, before they could turn round, they received strong blows to their heads, fainted and collapsed on the ground. A considerable sum of money, a gold bracelet and a cell phone were stolen from them. 9.     Neighbours called the Sokolinaya Gora police station. At 1.40 a.m. on 30 June 2001 the police officers Mr Zharov and Mr   Volkov arrived at the scene. They served in the 2nd police battalion of the Eastern Administrative District of Moscow, whose main task was to provide security to businesses and private property under commercial contracts. In addition to that, they acted as neighbourhood patrol officers. 10.     According to their statements, they saw two young men on the road whom they believed to be drunk. One of them was sitting, the other lay still. Some vomit could be seen. The policemen claimed that they reported the situation to the officer at the Sokolinaya Gora police station and told him that an ambulance or specialists from a sobering-up centre should be called. 11.     The policemen then dragged the unconscious applicant and his friend away from the road into the courtyard of house no. 16/18. According to the Government, the policemen left the applicant and N. “on a grass plot”; the applicant claimed that they had been put “in the rubbish dump”. At that moment the private security co-ordinator ( дежурный по отделу вневедомственной охраны ) informed the officers that an alarm had gone off and instructed them to check it out. They reported it to the officer at the police station and left the scene. 12.     At about 7 a.m. janitors Ms E. and Mr B. spotted two young men some three or four metres away from the rubbish bins and attempted to wake them up. However, both were unconscious, the dark-haired one (Mr   N.) mumbled incoherently. They called for an ambulance. 13.     At 8 a.m. Doctor P. arrived in the first ambulance. On seeing two victims, he called for another ambulance and began attending to Mr N. who had an abrasion and haematoma on his left cheek. When Mr N. regained consciousness, Doctor P. helped him climb into the van and took him to Moscow City Hospital no. 1. 14.     In the meantime, a second ambulance arrived with Doctor Ch. He loaded the still unconscious applicant into the van and took him to Moscow City Hospital no. 33. 2.     Treatment at Hospital no. 33 15.     Upon arrival at the hospital at 9.05 a.m. the applicant was diagnosed with alcohol intoxication. Injuries and abrasions on his wrists and forehead were noted. Two hours later he was examined by a neurosurgeon. 16.     Until 5 p.m. on 1 July 2001 the applicant remained, still unconscious and also undressed, on a trolley in the hospital corridor. 17.     At 6.30 p.m. emergency surgery – bilateral trepanation of the skull – was performed on him. 18.     On 8 July 2001 the applicant’s mother invited a private doctor to examine her son. The doctor determined that the applicant was in a life-threatening condition. An ambulance transferred the applicant in a state of coma to the Burdenko Military Hospital in Moscow. 3.     Treatment at Burdenko Hospital and partial recovery 19.     From 9 July to 27 July 2001 the applicant was in a coma. On 25 July 2001 tracheotomy (creation of a surgical airway in the cervical trachea) was performed and a cannula was inserted. 20.     After he woke up from the coma, he was transferred to the neurosurgery unit where he stayed in a critical state until 10 August. 21.     Until the removal of the cannula in October 2001 and then in December 2002, the applicant underwent several operative procedures for osteomyelitis of the skull. 22.     On 1 October 2001 a medical panel recognised the applicant as having disability of the second category. 23.     In 2002 the applicant developed post-traumatic convulsive disorder. On 13 June 2003 he had a seizure and fainted. He was taken to Burdenko Hospital and operated upon for a pus abscess in the skull. B.     Investigations and judicial proceedings 1.     Investigation into the assault (case no. 073041) 24.     On 30 June and 1 July 2001 the Sokolinaya Gora police station received from Hospitals nos. 1 and 33 reports on bodily injuries concerning the applicant and Mr N. The head of the inquiries section of the police station asked the operational officer Mr Yermakov to check the reports. Subsequently the internal inquiry (see below) revealed that Mr Yermakov had not taken any measures for the purpose of inspecting the crime scene, identifying witnesses or interviewing the victims. 25.     On 6 July 2001 Mr Yermakov forwarded the materials to the Investigations Department where the case was assigned to the operational officer Mr Abdryayev. Mr Abdryayev did not take any procedural decision regarding the materials until 17 July 2001. 26.     On 18 July 2001 the head of the Sokolinaya Gora police station launched an internal inquiry which revealed that nothing had been done with regard to the injury reports. Both Mr Yermakov and Mr Abdryayev were disciplined. On the same day the crime scene was examined for the first time. On 20 July 2001 a criminal investigation into the assault on the applicant and Mr N. was opened. 27.     On 20 September 2001 the investigator Mr Drozdov issued a decision to discontinue the proceedings because the perpetrator of the assault could not be identified. The only items of evidence referred to in the decision were statements by the police officers Volkov and Zharov, by the ambulance doctor and by Mr N. 28.     On 16 October 2001 the investigator Mr Solomkin decided to re-open the investigation. 29.     By letter of 29 October 2001, a deputy to the Presidential Envoy in the Central Federal Region wrote to the applicant’s mother that her complaint about the prolonged investigation had been examined by the Internal Security Department of the Ministry of the Interior. It had been established that the inquiry had not been properly conducted, that no one had visited or examined the crime scene, and that no other investigative steps had been taken. Operational police officers Mr Yermakov and Mr   Abramov had been reprimanded. 30.     On 16 November 2001, 6 January, 19 April, 13 June and 15 August 2002, decisions to suspend the proceedings were issued because the perpetrator(s) could not be identified. Supervising prosecutors set these decisions aside and instructed the investigator to take additional investigative measures, such as interviewing caretakers in the neighbouring buildings and the night watchman in the Korona café and examining the list of calls made from the stolen cell phone. 31.     On 12 September 2003 the case was transferred to the Main Investigations Department of the Moscow City Police. 32.     In a letter of 27 February 2004 the Investigations Committee of the Ministry of the Interior acknowledged that the investigation of cases nos.   073041 and 1056 (see below) had been improper, noting as follows: “Thus, it has been established that at the initial stage the investigation of case no. 73041 was carried out at a low professional level and in breach of the rules of criminal procedure. On many occasions proceedings were prematurely suspended on the ground that the persons responsible could not be identified. Certain officers of the Sokolinaya Gora police station of the Eastern Administrative District in Moscow were disciplined for violations of the rules of criminal procedure and inadequate management of the investigation. Investigation of case no. 1056 [medical negligence] was also held back because of significant failures. Having regard to deficiencies in the investigation and in compliance with the directions of the Moscow city prosecutor’s office, additional investigative steps and operational measures are now being carried out in the above cases with a view to examining the events in a comprehensive and thorough fashion and establishing the criminal liability of those responsible.” 33.     On 2 April and 13 May 2004 public prosecutors reversed further police decisions suspending the investigation and ordered that specific investigative measures be taken. 34.     On 4 June 2004 the case was referred to the Eastern Administrative District prosecutor’s office and assigned to the investigator Mr Volk, who was in charge of particularly important cases. On 20   July 2004, 30 January, 18 August and 5 October 2005, and 27 March 2006 Mr Volk suspended the investigation on the ground that the perpetrator(s) of the assault could not be identified. Those decisions were reversed by supervising prosecutors. 35.     The most recent decision by Mr Volk on suspending the investigation which has been made available to the Court is dated 17   July 2006. It took stock of the evidence that had been collected in the case. 36.     The decisions indicated that the statements had been taken from both victims – the applicant and N. – who had not remembered the attacker, their friends who had not seen the attack, and also the police officers, janitors and doctors who had seen the victims after the attack. The forensic experts had established that the applicant had sustained “serious bodily injuries” and N. “light bodily injuries”. 37.     The applicant’s mother told the investigator that shortly after the crime she had visited the Sokolinaya Gora police station. One of the police officers who had curly hair and the nickname “Pushkin”, had described to her that the victims had been found near the Korona café. The applicant’s mother had gone to the café and talked to the employees who had told her that on the night of 29 to 30 July 2001 three police officers nicknamed “Sasha”, “Sidor”, and “Kostya” had been heavily drinking in the café and had been aggressive to the point of seeking a fight with the bartender. However, they had not witnessed any fights between the officers and her son or Mr N. The investigator also took testimony from seven officers from the Sokolinaya Gora police station who claimed they were unable to remember visiting the café on that particular night and did not know anyone nicknamed “Sidor” or “Pushkin”. Three of them denied that they had ever been to the Korona café and the other four acknowledged that they had gone there from time to time. 38.     Mr N.’s mother stated to the investigator that in the hospital her half-conscious son had mumbled incoherently about “cops” hitting him on the head. When she came to visit him two days later, she stumbled upon two men in civilian clothing by her son’s bed, one of them was shaking her son and asking him whether he had remembered the “cops” who had beaten him. She loudly protested and they all went out into the corridor where the men produced their badges and introduced themselves as the police officers from the Sokolinaya Gora police station, Mr Drozhzhin and Mr   Konovalenko. Between themselves, they called each other “Pushkin” and “Dimon”. They told her that they were investigating the assault on her son. The investigator interviewed Mr Drozhzhin, who denied that he had ever visited Mr N. in hospital. Mr Konovalenko was not available for questioning. 39.     The investigator found that it was impossible to identify the persons responsible for the assault. On 30 November 2006 a supervising prosecutor annulled that decision and instructed Mr Volk to elucidate discrepancies in the testimony by organising confrontations and to locate and examine former police officers from the Sokolinaya Gora police station. 2.     Investigation into the actions of the police officers Zharov and Volkov (case no.   229337) 40.     On 6 January 2002, following on the applicant’s mother’s complaint about an improper performance of their duties by the police officers Mr   Zharov and Mr Volkov and by Doctor K., who had not rendered assistance to the applicant that was appropriate for his condition, certain material was severed from the main criminal case for a separate inquiry. 41.     On 13 March 2002 an investigator with the Izmaylovskiy District prosecutor’s office, on the basis of statements by Mr N., the applicant’s mother, Doctors P., Ch. and K., and the officers Zharov and Volkov, decided that there was no indication of a criminal act because Doctor K. had correctly diagnosed the applicant and had taken all the required measures, and because the officers had “erred in good faith as to Mr Vasilyev’s and Mr N.’s capacity to take care of themselves”. 42 .     On 15 March 2002 a supervising prosecutor quashed that decision. She found that the conclusion about the police officers’ good-faith error contradicted the facts of the case, as the applicant had been unconscious when they had arrived. She decided on the institution of criminal proceedings under Article 293 § 2 of the Criminal Code (criminal negligence leading to the victim’s death or grave injury). The investigation was assigned to the Izmaylovskiy District prosecutor. 43.     On 15 June and 26 July 2002 the investigation was discontinued for a lack of indications of a criminal offence. These decisions were set aside by higher-ranking prosecutors. 44.     On an unspecified date the officers Zharov and Volkov were formally charged with abandonment of the applicant and N. in danger, an offence under Article 125 of the Criminal Code. 45.     On 5 September 2002 the applicant was granted the status of a victim in the proceedings. 46.     On 27 November 2002 the applicant asked the investigator to amend the legal characterisation of the officers’ actions. He pointed out that the officers had been on duty and had acted in breach of requirements of the Police Act. For that reason they should have been charged with criminal negligence leading to grave consequences, an offence under Article 293 § 2 of the Criminal Code. On the same date the applicant asked the investigator to recognise his status as a civil party. His application bore a handwritten acknowledgement of receipt by the investigator, dated 28 November 2002. It is not clear what response the investigator gave to the applicant’s requests. 47.     On 29 November 2002 the bill of indictment was served on Mr   Volkov and Mr Zharov. The prosecution’s case under Article 125 of the Criminal Code was that they had been the patrolling police officers on duty when they had arrived at the scene and found two unconscious men. Being aware that the men had been helpless and unable to care for themselves, Volkov and Zharov had not fulfilled their legal duty, under the Police Act, the Regulation on Police Patrols and the internal instructions, to protect victims of offences or accidents, intoxicated persons unable to move, and other vulnerable individuals. Even though they had a realistic possibility of providing assistance, they had failed to examine or identify the victims, call an ambulance, administer first aid or take them to a hospital, locate witnesses or secure the crime scene. Instead, they had moved the victims to the side and had falsely reported to the officer at the Sokolinaya Gora police station that all the required measures had been taken. 48.     On 24 January 2003 the Izmaylovskiy District Court of Moscow scheduled the opening of the trial for 7 February 2003. The judge allegedly told the applicant that his request to join the proceedings as a civil party would be examined at a later stage. 49.     Hearings were held on 20 February, 25 March, 30 April, 23 June, 28   July and 24   September 2003. 50 .     The trial court took testimony from a neighbourhood resident, the janitors Ms E. and Mr B., ambulance doctors P. and Ch., who described the circumstances in which they had discovered the applicant and Mr N. The senior operational officer Mr K., who had been on duty at the Sokolinaya Gora police station on the night of 29 to 30 June 2001, stated that no telephone call concerning two young men on the Shcherbakovskaya Street had been recorded in the log. However, he had been replaced for one hour by the officer Mr Vancharin. He also testified that the police officers serving in the private-security department ( отдел вневедомственной охраны ) had to give priority to the orders of the security co-ordinator rather than the orders of the officer-on-duty at the police station. 51.     The officer Mr Vancharin confirmed that he had taken a call concerning the young men but had not recorded it in the log because it had not been placed through the emergency line. He had radioed to the patrol officers from the private-security department and told them to verify the information. They reported back that they had found two drunk men and that the situation was under control. In response, he instructed them to continue patrolling. The security co-ordinator testified to the court that at 1.44 a.m. he had received an alarm signal and had dispatched the officers Volkov and Zharov to check it out. 52.     On 29 September 2003 the District Court acquitted both police officers, having made the following assessment of the evidence: “...[T]he court considers that it has not been shown that the defendants Volkov and Zharov acted in the knowledge of the fact that [the applicant and his friend] were in a state that was dangerous for their life and health because they could not know it, as they only spent a few minutes on the scene in the night time and as no injuries were visible. They decided that [the applicant and his friend] were in a state of alcohol or drug intoxication... In support of their claim that Mr Volkov and Mr Zharov made a false report [to the officer-on-duty] the prosecution referred only to the testimony by the witness Mr   Vancharin, who was a police officer but who was not authorised to take any reports. However, he was replacing the officer-on-duty, in breach of the regulations of the Sokolinaya Gora police station... Upon receipt of such information, an officer-on-duty has an obligation to record it in the registration log, to check it and to record the results of the check. The court considers that the officer-on-duty, upon receiving information from Volkov and Zharov that the situation was under control, was required to verify it and obtain credible information about the situation. Mr Vancharin, however, did not do that and did not relay that information or the results of the check to the actual officer-on-duty... The court therefore lends credence to the testimony by Mr Volkov and Mr Zharov... because in these circumstances Mr Vancharin had no interest in telling the truth.” 53.     On 17 February 2004 the Moscow City Court upheld the judgment on appeal in a summary fashion. 3.     Investigation into medical negligence (case no. 1056) 54.     On 14 August 2001 the chief medical officer of the emergency care unit informed the applicant’s mother that an internal inquiry had established that the ambulance doctor had diagnosed the applicant on the basis of his friend’s statements. As a result, he had underestimated the gravity of his condition. The doctor had been severely disciplined. 55.     On 8 November 2001 and 8 February and 2 August 2002 the public prosecutors at various levels informed the applicant’s mother that the doctors of Hospital no. 33 had committed no prosecutable offence and refused to institute criminal proceedings. 56.     By letter of 4 January 2002, the deputy head of the Moscow Health Protection Committee confirmed that a review of the medical care administered to the applicant at Hospital no. 33 had not identified any defects or shortcomings. 57.     Further to a complaint by the applicant’s mother, on 5 March 2003 the first deputy to the Moscow City prosecutor cancelled the decision of 2   August 2002, by which the institution of criminal proceedings had been refused, and instructed the Preobrazhenskiy District prosecutor to open a criminal investigation into the offence under Article 124 § 2 of the Criminal Code (failure to render medical assistance to a patient resulting in grave damage to his health). 58.     On 15 June 2003 a composite medical study was commissioned for the purpose of determining whether the applicant’s health could have been harmed by belated and inadequate medical treatment at Hospital no. 33. 59.     On 7 July 2003 a panel of six experts from the 111th Centre for Forensic Medicine of the Ministry of Defence began their work. 60.     On 4 September 2003 the investigator Mr Kirichevskiy suspended proceedings because the person responsible could not be identified. 61.     On 1 December 2003 the experts’ panel returned their findings based on the applicant’s medical record (no. 23304) from Hospital no. 33, materials of the criminal case and information from attending physicians. The experts found, in particular, that an incomplete and contradictory description of the applicant’s injuries upon his arrival at Hospital no. 33 made it impossible to determine the exact origin, time and cause of his injuries. It could only be established that he had been hit on the head with a heavy blunt object. Moreover, a subsequent examination at Burdenko Hospital revealed two broken thoracic vertebrae which had gone unnoticed at Hospital no. 33, where an X-ray examination had been indicated but never carried out. 62.     The experts determined that, given the grave condition in which the applicant had been admitted, he should have been examined immediately by a neurosurgeon and other specialists for differential diagnosis of craniocerebral injury and intoxication and for decisions on urgent treatment. However, a neurosurgeon examined the applicant more than two hours later upon his arrival and in the following thirty-two hours no specialists saw him and no medical tests, not even the basic blood and urine tests, were carried out. Even the applicant’s temperature was not taken. The experts determined as follows: “From the moment of arrival (at 9.05 a.m. on 30 June 2001) and until the beginning of preparation for surgery (at 5.30 p.m. on 1 July 2001) the [applicant] was not adequately and objectively examined, the real clinical diagnosis was not made... and appropriate medical treatment was not indicated... Prolonged passive observation of the [applicant] not accompanied by clinical examination led to drastic deterioration of his condition and, as a consequence, to belated surgical intervention not based on clinical and lab tests which resulted in markedly negative post-traumatic and post-surgery complications for the [applicant]... In the post-surgery period antibacterial treatment was indicated but given inconsistently and without appropriate supervision which, most likely, pre-determined subsequent development of suppurative inflammation of post-operative wounds, arachnoid membranes and medullary substances, osteomyelitis of the right parietal bone, etc...” 63.     The experts also noted that there had been no objective basis for diagnosing the applicant with alcohol intoxication. Neither the ambulance doctor in his notes nor his colleagues in subsequent entries in the medical record mentioned alcohol breath. A reference to alcohol breath appeared for the first time in the partly illegible and incomplete report of a medical examination of 30 June 2001. However, that examination was carried out in breach of the applicable regulations. No treatment for intoxication was indicated and the intoxication diagnosis did not feature in any other documents. The credibility of the intoxication diagnosis was further undermined by the fact that the amount of alcohol allegedly found in the applicant’s blood would have been lethal. 64.     The experts concluded as follows: “The extent of damage resulting from the [applicant’s] prolonged stay in a medical institution without adequate medical assistance cannot be fully ascertained. It can only be asserted that his condition gravely deteriorated during that period and that irreversible brain changes progressed to the point where emergency surgery was required by life-saving indications... The present study identified a number of defects in the medical care dispensed to [the applicant] at Hospital no. 33 of Moscow – in particular, unjustified conservative treatment, incomplete examination, belated and incomplete diagnosis, belated surgical intervention, inadequate medical measures – which failed to arrest development of the grave post-traumatic process and contributed to an unfavourable outcome and the [applicant’s] disability. However, it is not possible to measure the extent to which these defects affected the outcome because appropriate measurement methods do not exist.” 65.     At some point in 2003 it transpired that the applicant’s medical record from Hospital no. 33 was lost. It had been removed by the investigator Mr   Solomkin from the hospital in 2001 and produced to the experts for examination. It was then returned to the investigators, who were no longer able to locate it. 66.     On 12 January 2004 a deputy Moscow City prosecutor reversed the decision suspending the proceedings and asked that those responsible for delays and procedural violations be disciplined. On 17 February 2004 an internal inquiry established that the investigator Mr Kirichevskiy had unlawfully decided to discontinue the proceedings before the medical examination had been completed. The investigator received a reprimand and his superior was demoted. 67.     On 3 February 2004 the investigator Mr Shakhov from the Investigations Department of the Eastern Administrative District Police took up the case. He wrote to the applicant’s mother that those responsible for the loss of the medical record had been disciplined. 68.     On 20 April 2004 the investigator Mr Shakhov commissioned a new medical study by the same experts and with the same questions. The previous study was considered inadmissible because it had been completed at the time when the proceedings had been suspended. On 17 May 2004 the new study was completed. The experts returned the same findings. They also noted that their task had been hampered by numerous corrections of entries, in particular dates and times, in the medical records from Hospital no. 33 and because of inexplicable contradictions in those entries. 69.     On 20 May 2004 the investigator Mr Shakhov issued a decision suspending the proceedings on the ground that the authorised investigation period had expired. On 19 June 2004 the decision was annulled by a supervising prosecutor. 70.     The investigation was transferred to Mr Buvin who suspended the proceedings on the same ground on 1 September and 19 November 2004. A public prosecutor set aside his decisions on 13 October and 18 December 2004. 71.     On 18 January 2005 the investigator noted that the initial forensic examination had not determined the extent of correlation between the deficiencies in the medical assistance provided to the applicant at Hospital no. 33 and the damage to his health. He appointed a new medical examination by the experts from the Health Protection Department of the Moscow Government and suspended the proceedings in the case. 72.     On 30 May 2005 the experts returned their findings which were based, in the absence of the original medical records, on the materials of the case file and extensive quotations from the original records in the text of the initial expert examination. The experts found that the applicant had suffered from a vascular pathology which had resulted in a subdural hematoma against the backdrop of a head trauma and alcohol intoxication. In their view, at the moment of the applicant’s admission to Hospital no. 33, no urgent surgery was required. The hematoma was allowed to grow over a period of time under constant supervision by medical specialists who awaited the most propitious moment for brain surgery. The experts concluded that the findings of the initial examination had been “objectively untenable” and that the diagnosis and surgery had been carried out in a timely and precise fashion. On the same day the public prosecutor ordered the proceedings to be resumed. 73.     Further decisions concerning the discontinuance of the proceedings on various procedural grounds were issued on 18 January 2005 (annulled on 30   May) and 31 May 2005 (annulled on 24 June). 74 .     On 15 August 2005 the investigator decided to commission a further forensic examination with a view to eliminating the discrepancies between the findings of the first and second experts’ reports. It was entrusted to the Russian Centre for Forensic Medicine at the Federal Agency for Health Protection and Social Development. However, the Centre refused to conduct the examination in the absence of the original medical records. The director of the Centre’s First Department stated to the investigator that an examination on the basis of the case-file materials and previous findings by other experts would be “methodologically incorrect and in breach of the existing practice of expert examinations”. 75.     On 6 September 2005 the investigator granted the applicant the status of a victim in the proceedings and recognised his mother as his legal representative. 76.     On 28 April and 19 July 2006 the investigator Mr Volk decided to discontinue the proceedings on the ground that no offence had been committed. The decisions were set aside by supervising prosecutors. 77.     The most recent decision on discontinuance of criminal proceedings, which the Court has in its possession, was made by the investigator Mr   Volk on 29 November 2006. He took stock of the existing evidence, including the testimony by the doctors Mr K., Mr Ts. and Mr B. from Hospital no. 33, the ambulance doctors, the applicant’s friend Mr N., the applicant’s mother, and the applicant himself. The findings of the first and second forensic studies were extensively quoted, as were the reasons given by the federal centre for forensic examination for refusing to conduct a “conciliatory” study in the absence of the original documents. The investigator reached the following conclusion: “Despite the existence of substantial discrepancies in the above-mentioned findings by two experts’ commissions as to the origins and development of [the applicant’s] disease and the professional level of treatment that was administered to him, neither commission could state that there was a link of causality between the treatment administered to [the applicant] and the consequences in the form of serious damage to the victim’s health. In these circumstances, the investigation finds that there are no objectively verifiable factual indications that Doctors K., Ts, and B. from Hospital no. 33 failed to render medical assistance to [the applicant] without valid reasons, thus resulting in serious damage to his health, that is, that they committed the offence under Article 124 § 2 of the Criminal Code.” 78 .     On the same date a supervising prosecutor quashed that decision and instructed Mr Volk to remedy the shortcomings in the investigation and, in particular, to locate the original medical documents. II.     RELEVANT DOMESTIC LAW A.     Criminal Code 79.     Article 124 of the Criminal Code defines the offence of non-provision of medical assistance to a patient as failure to provide medical assistance, without valid reasons, by the person who had a legal obligation to render such assistance. Paragraph 2 of the Article concerns the situation in which such failure resulted in the patient’s death or grave damage to his health. 80.     Article 125 concerns the offence of abandonment in a life-threatening situation, which is defined as the deliberate act of abandoning without assistance a person who finds himself or herself in a situation that endangers his or her life or limb and who is incapable of taking measures for self-preservation because of his or her young or old age, illness or helplessness, provided that the offender had the possibility of rendering assistance to that person and also a duty to take care of him or her. 81.     Article 293 defines the offence of professional negligence as non-performance or improper performance of professional duties entailing a substantial violation of the rights and legitimate interests of citizens. B.     The Police Act (Law no. 1026-I of 18 April 1991) 82 .     Section 10 provides that the police have, in particular, the duty to render assistance to victims of criminal and administrative offences and accidents, and to persons in a helpless state or in a state that is dangerous for their life or limb. C.     Regulation on Police Patrols (Order of the Ministry of the Interior no.   17 of 18 January 1993) 83 .     On arrival at the crime scene, a police patrol must render assistance to the victims, call an ambulance if necessary, identify possible witnesses and eye-witnesses to the crime, secure the site, report to the officer-on-duty and proceed in accordance with his instructions (paragraph 135). 84 .     While administering first aid or transferring the victim to a medical institution, the police officer must examine the victim’s clothing and exposed areas of the body with a view, in particular, to identifying him or her. If the victim shows no visible signs of life, the officer must firstly ascertain whether he is alive or not, without altering his position or that of surrounding objects (paragraph 141). D.     Regulation on Private Security Departments Attached to the Police (Government Resolution no. 589 of 14 August 1992) 85 .     Private-security departments attached to the police force are created for the protection of private property (paragraph 1). Private-security forces comprise police officers as well as technical and support staff (paragraph   4). Officers of private-security departments are recruited by the Ministry of Internal Affairs (paragraph 9) and they have the same rights as those conferred on the police officers under the Police Act, including the right to carry weapons and the right to arrest offenders (paragraph 8). E.     Code of Criminal Procedure 86.     Before 10 July 2003 the Code of Criminal Procedure provided that a civil claim could be lodged after the institution of the criminal proceedings but before the end of the pre-trial investigation (Article 44 § 2). After the amendments introduced by Federal Law no. 92-FZ of 4 July 2003, the time period for lodging a civil claim was extended up to the beginning of final pleadings in the first-instance court. THE LAW I.     ALLEGED INEFFECTIVENESS OF THE INVESTIGATION INTO THE ASSAULT ON THE APPLICANT 87.     The applicant complained under Article 2 of the Convention that the State had failed to provide for a mechanism to ensure public safety and to investigate the assault on his life and health. 88.     In his observations on the admissibility and merits of the application, the applicant emphasised that his claim was not that he had been assaulted by State agents or that the attack had been otherwise attributable to the State. Rather, he maintained that the State had not discharged its obligation to carry out an effective investigation into the circumstances of the life-threatening assault, to identify the perpetrators and to compensate him for the damage. In this connection, he pointed out that the investigation had not been prompt because the case had been opened more than twenty days after the incident, that it had been closed and re-opened at least eight times, that his mother’s version of the involvement of police officers had been checked for the first time only in 2004, and that the overall duration of the investigation had been excessively long. 89.     The Government submitted that police officers had been disciplined for the failure to institute criminal proceedings in a timely fashion. The initial decisions to discontinue the criminal proceedings had not been justified and for that reason the case had been transferred to the Investigations Department of the Eastern Administrative District of Moscow. However, there had been further delays in the investigation which had brought about the dismissal of the investigator Mr Shakhov and disciplinary sanctions against the investigator Mr Kirichevskiy and the deputy public prosecutor of the Eastern Administrative District of Moscow. Subsequently the case had been reassigned to the public prosecutor’s office of the Eastern Administrative District of Moscow. On 7   June 2006 the Moscow City prosecutor’s office had set aside the decision to discontinue the proceedings and the investigation had been resumed. A.     Admissibility 90.     The Government submitted that the complaint was premature because the investigation had not yet been concluded by a final decision. Accordingly, the applicant had not exhausted domestic remedies. 91.     The Court considers that the Government’s objection should be joined to the merits, since it is closely linked to the substance of the applicant’s complaint about the State’s alleged failure to conduct an effective investigation (see Mikheyev v. Russia , no. 77617/01, § 88, 26   January 2006). The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Moreover, it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 1.     The applicable Convention provision 92.     On the facts, the Court observes that the applicant was attacked by one or more individuals with an apparent intention to rob him. He received a hard blow to his head, lost consciousness and later remained in a coma for a long period of time. Forensic experts described the injuries he had sustained as “serious” according to the domestic classification. 93.     In the present case, the applicant’s injuries did not prove fatal. This outcome, however, does not exclude in principle an examination of his complaint under Article 2, the text of which, read as a whole, demonstrates that it covers not only intentional killing but also situations where the use of force may result, as an unintended outcome, in the deprivation of life. Furthermore, the Court has already examined complaints under this provision where the alleged victim did not die as a result of the impugned conduct (see Makaratzis v. Greece [GC], no. 50385/99, § 49, ECHR 2004 ‑ XI; Isayeva and Others v. Russia , nos. 57947/00, 57948/00 and 57949/00, § 174, 24   February 2005; and İlhan v. Turkey [GC], no.   22277/93, § 75, ECHR 2000-VII). 94.     Nevertheless, the Court’s case-law has established that it is only in exceptional circumstances that physical ill-treatment which did not result in death may disclose a violation of Article 2. The degree and type of force used and the intention or aim behind the use of force may, among other factors, be relevant in assessing whether in a particular case the actions resulting in an injury short of death were such as to bring the facts within the scope of the safeguard afforded by Article 2. In many cases where a person was assaulted or ill-treated, his or her complaints will rather fall to be examined under Article 3 of the Convention (see, mutatis mutandis , Makaratzis , § 51, and İlhan , § 76, both cited above). In this connection, the Court reiterates that, to fall within the scope of Article 3, the alleged ill-treatment must attain a minimum level of severity. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim (see Saadi v. Italy [GC], no. 37201/06, § 134, ECHR 2008 ‑ ...). 95.     The applicant and his friend were attacked by an unknown person and a large sum of money was stolen from them. A blow had been dealt to each of them from behind. Judging by the direction of the attack, it would appear that the assailant had sought to knock the victims out before they could register his face. After the applicant had fainted, he