CEDH · CASELAW;COMMUNICATEDCASES;ENG — 11 septembre 2017

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA36B60A1 { font-family:Arial; font-style:italic }   Communicated on 11 September 2017   THIRD SECTION Application no 37735/09 A. against Russia lodged on 14 April 2009 STATEMENT OF FACTS The applicant, Ms A., is a Russian national, born in 1998. She is represented before the Court by Ms O.A. Sadovskaya, a lawyer practising in Nizhniy Novgorod. The facts of the case, as submitted by the applicant, may be summarised as follows. On 31 May 2008 the applicant’s father was arrested by officers of the Tuapse town unit no. 21 of the Krasnodar regional department of the Federal Service for Drug Control ( ФСKН – “the drugs police”) and the Federal Security Service following a test purchase of drugs, an undercover operation organised by the drugs police. Criminal proceedings were brought against him on the same day and he was charged with selling cannabis to N., the drugs police undercover agent. The prosecution alleged that the applicant’s father had handed the drugs over to N. on 30 May 2008 and had received banknotes from him on 31 May 2008, immediately before his arrest. The arrest operation was carried out in the presence of the applicant, who was nine years old at the time. That day the applicant’s father had taken her to school for an event marking the end of the school year. The applicant and her father came out of the school at about 8.45 a.m. and went to their car. Several men ran up to the applicant’s father. One of them pushed him to the ground and started beating him. The applicant jumped out of the car and shouted that they should stop beating her father. One of the officers shouted at her “Shut your mouth and get into the car!”. The applicant, who was frightened, obeyed. For some time she sat in the car watching her father being beaten up and arrested. She felt sick and needed more air. She tried to get out of the car but the men who were arresting her father blocked the door from the outside and would not let her out. After some time the applicant managed to get out of the car and ran home, which was a long way from the school. When she was close to her house she saw people she did not recognise coming out. She was scared and ran to her grandmother’s house, which was nearby. She felt giddy and thought that she would faint. Her uncle found her on the street and took her to his home. She was in a state of shock and could not explain what was happening. After that incident the applicant’s health deteriorated. On 3 June 2008 she was examined by a neurologist and diagnosed with a neurological disorder and a neurosis-like enuresis. She was examined at the Krasnodar regional children’s hospital and diagnosed with post-traumatic stress disorder and consequent neurogenic hyper-reflective urinary bladder. She started screaming during the night, wetting herself and suffering panic attacks when left alone in a car or at home. She stopped communicating with other children, became reserved, lost her vivaciousness, started to have difficulties speaking and developed a tremor affecting the face and limbs. She lost her interest in music, despite having previously been a successful violin student. On 10 July 2008 the applicant’s mother, on behalf of the applicant, complained about the incident to the prosecutor’s office. An investigator from the Belorechenskiy inter ‑ district unit of the investigative committee of the Krasnodar regional prosecutor’s office carried out a pre-investigation inquiry and refused to institute criminal proceedings. His refusals of 14 July and 21 August 2008 were overruled as unlawful and unfounded. In his most recent decision of 1   September 2008, the investigator refused to institute criminal proceedings for lack of elements of a crime in the actions of the officers of the drugs police and the Federal Security Service who had participated in the arrest of the applicant’s father. The officers had been interviewed and had denied using any physical force against the applicant’s father during his arrest. Officer P., who had observed the arrest, had stated that physical force had been used against the applicant’s father; the force had not been excessive and had been justified by his attempt to escape. Several witnesses had stated that the applicant’s father’s shirt had been torn and the buttons had been missing. The investigator dismissed as unreliable statements by witness G. that he had seen police officer K. delivering blows to the applicant’s father when arresting him, on the grounds that G. was a drug user with a record of administrative offences. The investigator referred to an expert opinion that the applicant was emotionally unstable, had had signs of a neurological disorder before the incident, and could have sustained a psychological trauma as a result of even a minor conflict involving her father. Relying on the police officers’ statements and the results of an internal inquiry conducted by the police, which found the applicant’s allegations unfounded, the investigator held that no force had been used against the applicant’s father during his arrest and that the applicant had not been kept in the car against her will. Her father’s arrest in itself could have been a powerful source of stress for her, which could have caused the deterioration of her health. However, in the absence of intent to harm her health, the police officers’ actions lacked the elements of a crime under Article 286 of the Criminal Code (abuse of powers). The applicant lodged an appeal against the investigator’s decision of 1   September 2008 before the Apsheronsk District Court. On 12   September 2008 the District Court held the decision to be lawful and well-founded. The Krasnodar Regional Court upheld that decision on 22   October 2008. On 30 December 2009 the investigative committee of the Krasnodar regional prosecutor’s office terminated the criminal proceedings against the applicant’s father on the grounds that evidence had been obtained and investigative actions carried out in the case unlawfully. In particular, the record of the test purchase of drugs had been falsified and an attesting witness had stated that he had testified falsely, at the request of the drugs police, to having seen the transfer of drugs from the applicant’s father to N. on 30 May 2008. In support of her application, the applicant submitted witnesses’ statements, as well statements made in 2008 by her and her father concerning the incident of 31 May 2008 during interviews with lawyer V. from the interregional NGO, Mothers in the Defence of the Rights of Detainees, Accused and Convicts ( межрегиональная общественная организация «Матери в защиту прав задержанных, подследственных и осужденных» ). The applicant also submitted photographs of the shirt her father had worn during his arrest. The shirt in the photograph is torn and all of the buttons are missing. COMPLAINTS The applicant complains under Articles 3 and 8 of the Convention that she was exposed to the violent arrest of her father with the unjustified use of physical force and that she herself was addressed in a rude way, prevented from getting out of the car and was left to get home unaccompanied. This amounted to cruel treatment of a small child, which showed a lack of respect for her feelings towards her father. The applicant further complains under Article 13 of the Convention that the authorities failed to institute criminal proceedings and carry out an effective investigation into her complaints. QUESTIONS 1.     Did the applicant’s exposure to the arrest operation against her father and the manner in which she was treated by the officers who carried out the arrest operation amount to inhuman or degrading treatment in breach of Article 3 of the Convention (see Gutsanovi v. Bulgaria , no. 34529/10, §§   131-34 and 137, ECHR 2013 (extracts))?   In particular, did the police, in planning and carrying out the arrest operation, take the applicant’s (possible) presence at the scene of the arrest into consideration – and, if not, should they have done so – in order to exclude or minimise the harm to her health and well-being?   2.     Having regard to the procedural protection from inhuman or degrading treatment (see paragraph 131 of Labita v. Italy [GC], no.   26772/95, ECHR 2000-IV), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?   3.     Do the facts of this case disclose a breach of the right to respect for private and family life under Article 8?   4.     Did the respondent State have in place an adequate legal framework to ensure the applicant’s effective protection, in compliance with its obligations under Articles 3 and 8? Was a prior judicial review of the necessity and lawfulness of the police operation available?   5.     Did the applicant have at her disposal an effective domestic remedy for her substantive complaints under Articles 3 and 8, as required by Article   13 of the Convention?