CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 13 juillet 2010

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Russia (application no. 72250/01)   STATE INTIMIDATED APPLICANT WHO COMPLAINED ABOUT POLICE BRUTALITY TO THE EUROPEAN COURT OF HUMAN RIGHTS   Unanimously   Violation of Article 3 (prohibition of inhuman or degrading treatment – lack of an effective investigation) Violation of Article 6 § 3 (c) in conjunction with Article 6 § 1 (right to a fair trial) Violation of Article 34 (right of individual petition) of the European Convention on Human Rights     Principal facts   The applicant, Aleksandr Lopata, is a Russian national who was born in 1963 and is currently serving a nine-year prison sentence for the murder of D., his daughter’s friend.   Mr Lopata was arrested in August and September 2000 in connection with the murder of D. He submitted that he was ill-treated on both occasions in order to force him into making a confession. In particular, between 8 and 9   September 2000 he alleged that officers of Uchaly police station repeatedly beat, kicked and punched him, pulled his hands and feet back towards his spine and threatened to rape him with a truncheon. He was intermittently taken back to a cell, with the officers programming a television to switch on when the beatings were to resume. In the early hours of 9 September he finally gave in and wrote out a confession. A few days later he was taken to a remand centre in Beloretsk and, on arrival, was not given a medical examination. To corroborate his allegations, he referred to statements by his lawyer – who he was eventually allowed to see on 12 September 2000 – and cellmates in the remand centre who attested to having seen cuts and bruises on his face and body.   He was examined by a doctor on 14 September: the ensuing report noted his complaints about pain in the left ear but concluded that were no injuries to his body. On seeing his lawyer, he immediately retracted his confession, claiming that it had been obtained from him under duress. He repeated that claim both during the ensuing investigation into his complaints about ill-treatment and the trial against him. The accused police officers denied any accusations of torture throughout.   On 24 September 2000 the prosecution authorities refused to bring criminal proceedings against the police officers in question, referring to their denials of ill-treatment and the medical report of 14 September. Another inquiry, launched in 2005, was also subsequently discontinued.   Mr Lopata was found guilty as charged on 15 January 2001; his conviction was essentially based on his confession. His allegation that that confession was obtained through ill ‑ treatment was once again dismissed.   On 6 January 2004 – that is after bringing his application to the European Court of Human Rights – Mr Lopata was visited in prison by Captain G., a state official for Execution of Sentences. According to Mr Lopata, the Captain tried to pressure him to retract one of his complaints to the Court and threatened him with reprisals when he refused. He subsequently had two further visits from state officials who also questioned him about his application to the Court.   After those visits, Mr Lopata submitted that, transferred to premises with worse living conditions, he had to give up his prison job as a welder, and was threatened with criminal prosecution for making false statements.   Mr Lopata alleged that, as a consequence of the beatings, he suffered from pain in his kidneys and collar bone and went deaf in one ear.   Complaints, procedure and composition of the Court   The case notably concerned the authorities’ intimidation of Mr   Lopata following his complaint to the European Court of Human Rights about police brutality. He also alleged that his complaint about ill-treatment had not been investigated effectively. He relied on Article   3 (prohibition of inhuman or degrading treatment), and Article   34 (right of individual petition). Further relying on Article   6   §§   1 and   3   (c) (right to a fair trial), he also complained that his conviction had been based on a confession made under duress and without a legal representative.   The application was lodged with the European Court of Human Rights on 26 March 2001 and declared partly admissible on 3 May 2005.   Judgment was given by a Chamber of seven judges, composed as follows:   Josep Casadevall (Andorra), President , Corneliu Bîrsan (Romania), Boštjan M. Zupančič (Slovenia), Anatoly Kovler (Russia), Alvina Gyulumyan (Armenia), Egbert Myjer (the Netherlands), Luis López Guerra (Spain), judges , and also Santiago Quesada , Section Registrar .     Decision of the Court   Article 3 The Court had serious reservations concerning the accuracy and reliability of the medical report of 14 September 2000 – which had been the basis of the decision to discontinue any further investigation into the applicant’s allegations – and the way in which his medical examination had been conducted. It was particularly surprising that, although the expert mentioned that the applicant had complained about pain in the left ear, he had not considered it necessary to question the applicant about his symptoms and how they had come about, or indeed to even examine his ear. Moreover, despite concerns voiced by the applicant and his lawyer about the report, the expert had never been summoned for interview during the ensuing trial.   Nor, strikingly, had the prosecutor in charge of the inquiry interviewed the police officers, the applicant, his lawyer, the remand centre medical staff or the applicant’s cellmates (at either the police station or the remand centre). Although the trial court had later interviewed the applicant and some of the police officers, there had been serious contradictions in their statements: one of the police officers claiming before the prosecutor that he had interviewed the applicant, to then go on and state before the trial court that he had in fact been on leave that day; and, another officer at the trial acknowledging that he had interviewed the applicant at the same time as denying ever having been present.   The Court therefore held that both the inquiry and the trial had been undermined by shortcomings and discrepancies resulting in the applicant’s allegations of ill-treatment not having been investigated effectively, in violation of Article 3.   Given that failure to react to and investigate effectively the applicant’s complaints, the evidence available prevented the Court from being able to find beyond all reasonable doubt that Mr Lopata had been subjected to ill-treatment as alleged. Consequently, the Court could not find that there had been a violation of Article 3 in respect of the applicant’s alleged ill ‑ treatment while in police custody.   Article 6 §§ 1 and 3 (c) It was not in dispute that the applicant had not had access to his lawyer until 12   September   2000. Nor was there any evidence that the applicant had waived his right to legal assistance. Furthermore, as soon as the applicant had been interviewed by his lawyer, he had immediately retracted his confession. Moreover, the trial and appeal courts disregarded the applicant’s complaint that his confession had been obtained in the absence of legal assistance. Therefore, the use of his written confession obtained in circumstances which had raised doubts as to its voluntary character, in the absence of legal assistance, together with an apparent lack of appropriate safeguards at the trial, had rendered the applicant’s trial unfair, in violation of Article 6 § 1 in conjunction with Article   6   §   3 (c).   Article 34 The Government denied that any pressure had been put on the applicant during his conversation with Captain G. and claimed that it had been aimed at obtaining information on his complaints so as to prepare the Government for the Strasbourg Court proceedings. However, it had not provided any documents, for example, a transcript of the conversation, which could have refuted or cast doubt on the applicant’s submissions.   Indeed, the Court found it peculiar that there had been a one-year gap between Captain G.’s visit in 2004 and the resulting investigative steps taken in the additional inquiry of 2005. In any event, there was nothing in the case file which could link the domestic inquiry to the applicant’s questioning by Captain G.   Although there was no proof in the case file to support the applicant’s submissions concerning the deterioration of his conditions of detention, the Court concluded that the applicant could well have had good reason to have felt intimidated by his conversation with Captain G. and his ensuing repeated questioning by State officials, as well as legitimate fear of reprisals on account of his application to the Court. Accordingly, he had been subjected to illicit pressure, amounting to undue interference with his right of individual petition, meaning that Russia had failed to comply with its obligations under Article 34.   Under Article 41 (just satisfaction) of the Convention, the Court awarded Mr Lopata 15,000   euros (EUR) in respect of non-pecuniary damage and EUR 5,700 for costs and expenses.   (The judgment is available only in English.)   ***   The press release is a document produced by the Registry. It does not bind the Court. Decisions, judgments and further information about the Court can be found on its Internet site ( www.echr.coe.int ). To receive the Court’s press releases, you can subscribe to the Court’s RSS feeds .   Press contacts [email protected] / +33 3 90 21 42 08   Tracey Turner-Tretz (tel: + 33 (0)3 88 41 35 30) Emma Hellyer (telephone : +33 3 90 21 42 15) Kristina Pencheva-Malinowski (tel: + 33 (0)3 88 41 35 70) Céline Menu-Lange (tel: + 33 (0)3 90 21 58 77) Frédéric Dolt (tel: + 33 (0)3 90 21 53 39) Nina Salomon (tel: + 33 (0)3 90 21 49 79)     The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.   [1] Under Articles   43   and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery, any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of judges considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral request is refused, the Chamber judgment will become final on the day the request is rejected. Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution. Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.