CEDH · CASELAW;CLIN;ENG — 26 janvier 2006

.s3ABFC313 { font-size:10pt } .sEB86A30B { margin-top:0pt; margin-bottom:14pt; page-break-after:avoid } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s5CB9E8AB { margin-top:12pt; margin-bottom:0pt; text-align:justify; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Information Note on the Court’s case-law No. 82 January 2006 Mikheyev v. Russia - 77617/01 Judgment 26.1.2006 [Section I] Article 3 Torture Ill-treatment during police custody amounting to torture, and effectiveness of the investigation: violation   Facts : The applicant, a road traffic officer in the police force, and his friend F. were arrested and questioned on 10 September 1998 in relation to the disappearance of M.S., a teenage girl, whom they had given a lift in the applicant’s car two days earlier. The girl was subsequently reported missing. The applicant claimed that, while in police custody, his superior officer also forced him to sign a back-dated letter of resignation from the police. On 11 September the police searched the applicant’s flat, country house, garage and car and found three gun cartridges in his car. On 12 September an administrative offence report was filed against the applicant and F. for allegedly disturbing the peace. They were sentenced to five days’ administrative detention. On 16 September 1998 the police opened a criminal investigation into the finding of the gun cartridges in the applicant’s car. He was placed in custody and transferred to another detention centre under the jurisdiction of Leninskiy police department where, he submitted, questioning became more intensive and violent. Meanwhile, F. testified to the police that he had seen the applicant rape and kill MS. On 19 September 1998 the applicant was questioned at Leninskiy police station in the presence of several police officers and prosecution officials, including the deputy regional prosecutor. The applicant alleged that he was later tortured to make him corroborate F.’s confession and that police officers administered electric shocks to his ears through metal clips connected by a wire to a box. He was also threatened that he would be severely beaten and that an electric current would be applied to his genitals. He complained to the deputy regional prosecutor about the ill-treatment, who allegedly took no action. Then, unable to withstand the torture, the applicant submitted that he broke free and jumped out of the window of the second floor of the police station to commit suicide. He fell on a motorbike and broke his spine. He was taken to hospital, where his mother asked a number of doctors to make a note of the burns on her son’s ears in his medical records. Her request was refused. The same day, M.S. returned home unharmed, explaining that she had gone to stay with friends without telling her parents. The criminal case concerning her alleged abduction, rape and murder were consequently closed. However the applicant was then charged with M.S.’s abduction. That charge was dropped in March 2000 on the ground that he had freed M.S. at her request. The case concerning the illegal possession of gun cartridges was discontinued in March 1999 on the ground that, being a police officer at the time, the applicant was entitled to have ammunition in his possession. In September 1998 a criminal investigation was opened into the applicant’s fall from the police station window. The criminal proceedings were discontinued in December 1998, however, for lack of evidence. The case was subsequently reopened and closed several times. In September 2002 the prosecution service discontinued the investigation, finding that no criminal offence had been committed. The case was then again reopened and closed a number of times. A forensic medical examination of the applicant was drawn up in October 1998 which found that he had wounds on the top of his head, scratches on his forehead and bite marks on his tongue. No burns or other traces of the use of electrical current were recorded. In 2005 two policemen who had participated in the questioning of the applicant on 19 September 1998 were charged. The case file was eventually forwarded to the District Court, which found that the police officers had administered electric shocks to the applicant using a device connected to his ears. Unable to withstand the pain, the applicant had attempted suicide by jumping out of the window. On 30 November 2005 the police officers were found guilty under the Criminal Code of abuse of official power associated with the use of violence or entailing serious consequences. According to the information available to the Court, the judgment is not yet final. The applicant’s dismissal from the police force was later annulled and he was reinstated in his post. The officers responsible for his backdated dismissal were subjected to disciplinary proceedings. However, he is completely disabled and has had to leave the traffic police. Law : Applicant’s victim status –Despite the Government’s information to the Court that the November   2005 judgment convicting the police officers who had ill treated the applicant was not yet final and could be reversed on appeal, and, even though the first-instance court had recognised the fact of ill‑treatment, the applicant had not been afforded any redress in this respect. Moreover, the judgment only dealt with the ill-treatment itself and did not examine the alleged flaws of the investigation, which was one of the main concerns of the applicant. Hence, the applicant’s status as a victim was not affected by this judgment. Article   3 ( concerning the effectiveness of the investigation ) – In order to be able to assess the merits of the applicant’s complaints and in view of the nature of the allegations, the Court asked the Russian Government to submit copies of the criminal investigation files. The Government refused to do so, without explaining how the disclosure of the materials sought might be prejudicial for the interests of the investigation or the individuals involved. Neither did they advance any other plausible explanation for their failure to produce relevant documents and information, which were clearly in their possession. The Court therefore considered that it could draw inferences from the Government’s conduct and examine the merits of the case on the basis of the applicant’s arguments and existing elements in the file and the evidence given at the hearing of the District Court on 30   November 2005. In the absence of the investigation file, it was impossible for the Court to assess the quality of the investigative measures performed. However, a number of shortcomings in the investigation were noted, in particular: (i) the investigators’ decisions to discontinue the proceedings disclosed significant omissions in the official pre‑trial investigation. Moreover, it was unclear whether an attempt had been made to search the premises where the applicant had allegedly been tortured; (ii) many investigative measures were carried out after a significant lapse of time, e.g. the forensic medical examination of the applicant was dated more than five weeks after the alleged ill-treatment; (iii) until 2000 the decisions to discontinue the proceedings were based on almost identical evidence and reasoning; (iv) there was a clear link between the officials responsible for the investigation and those allegedly involved in the ill-treatment; and, (v) the approach to the assessment and collection of evidence by the prosecutor’s office was selective and inconsistent. The Court was particularly struck by the factual inaccuracy of the investigator’s report of 21 December 1998 which stated that the applicant had been released from custody on 11 September 1998 but then arrested again for disturbing the peace, when it had already been officially confirmed that at the relevant time he had been in the hands of the police. This fact was such as to discredit the consistency of the official investigation in the eyes of any independent observer. Moreover, it had taken seven years for the case to reach trial stage. The pre-trial investigation was closed and then re-opened more than 15 times and it was clear that during certain periods the investigative process was no more than a formality with a predictable outcome. In the light of such shortcomings, the investigation had not been adequate or sufficiently effective, and the Government’s objection on non-exhaustion of domestic remedies was thus dismissed. Conclusion : violation (unanimously). Article   3 ( concerning the alleged ill-treatment ) – Where an individual is taken into custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused. It was not disputed that the applicant had sustained injuries by jumping out of the window of the police station. However, the parties disagreed on what had driven the applicant to attempt suicide. Throughout the investigation the applicant had provided a consistent and detailed description of who had tortured him and how. He also had witnesses to support his allegations and the bite marks on his tongue described in the forensic report could also be seen as indirectly supporting his accounts. In the absence of any evidence to the contrary, the Court concluded that that the applicant did not suffer from any mental deficiency which might have influenced his decision to commit suicide. He was subjected to a very stressful situation, having been wrongfully suspected of such an appalling crime. However, no plausible explanation had been adduced as to why, knowing he was innocent, he should attempt suicide, if no pressure had been put upon him. In addition, there was evidence that other detainees had suffered, or had been threatened with, similar ill-treatment. In view of the circumstances, the Court was prepared to accept that, while in custody, the applicant was seriously ill‑treated by agents of the State, with the aim of extracting a confession or information about the offences of which he was suspected. The ill-treatment inflicted on him caused such severe physical and mental suffering that he attempted suicide, resulting in a general and permanent physical disability. The severity of the ill-treatment had amounted to torture. Conclusion : violation (unanimously). Article   13 – The applicant had been denied a sufficiently effective investigation in respect of the ill‑treatment by the police and thereby access to any other available remedies at his disposal, including a claim for compensation. Conclusion : violation. Articles 34 and 38 – Concerning the non-disclosure of the materials of the investigation by the respondent Government, in view of the Court’s findings under Articles 3 and 13, it was not necessary to examine these complaints separately. Article   41 – The Court awarded the applicant EUR 130,000 in respect of pecuniary damage and EUR   120,000 in respect of non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes